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IN THE POST OFFICE HORIZON IT INQUIRY
PHASE FOUR CLOSING SUBMISSIONS
ON BEHALF OF FUJITSU SERVICES LIMITED
1. Fujitsu Services Limited (“Fujitsu”) is grateful to the Inquiry for the opportunity to make these
written submissions at the close of Phase 4 (‘Action against sub-postmasters and others’).
2. Fujitsu wishes to reiterate its sincere apology to subpostmasters (“SPMs”) and their families for
Fujitsu’s role in the appalling miscarriages of justice, revealed in the evidence during Phases 1
and 4 of this Inquiry. Fujitsu deeply regrets having provided support to Post Office Limited (“Post
Office”) in connection with the wrongful prosecutions and civil proceedings which Post Office
pursued against SPMs and staff. Fujitsu recognises that, by that provision of support to Post
Office, Fujitsu fell considerably short of its corporate values and high ethical, oversight and
governance standards.
3. As in Fujitsu’s closing submissions for Phases 2 and 3 of the Inquiry, Fujitsu has focussed these
t the
written submissions on those Phase 4 issues in relation to which Fujitsu can most a
Inquiry at this stage. Therefore, not every issue raised in Phase 4 will be addressed.
4. It is important to note that the evidence for Phase 4 is not yet closed. Indeed, the Inquiry is due
to hear further evidence from a number of important witnesses, whose evidence is likely to bear
directly upon both the nature of the support provided by Fujitsu in relation to Post Office
prosecutions and civil proceedings (e.g. Mr Gareth Jenkins), and the monitoring and conduct of
those prosecutions within Post Office (e.g. the further evidence of Mr Jarnail Singh). It also
appears that there may still be additional disclosure from Core Participants, and Post Office in
particular, which will relate to the themes within Phase 4. Fujitsu will, in any event, revisit these
issues in its final closing submissions to the Inquiry.
5. These Phase 4 closing submissions on behalf of Fujitsu are structured around six topics:
5.1. Topic 1: Post Office’s compliance with its role and duties as a private prosecutor
5.2. Topic 2: Fujitsu’s contractual prosecution support obligations
5.3. Topic 3: Post Office criminal investigations
5.4. Topic 4: Failings in disclosure by Post Office
5.5. Topic5: Failings in relation to ARQ data
5.6. Topic 6: Failings in relation to the instruction of expert witnesses
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Topic 1: Post Office’s compliance with its role and duties as a private prosecutor
6. It is necessary to set out, by way of context, the important duties which apply (and applied
throughout the Inquiry’s relevant period) to a private prosecutor. Most fundamentally, a
prosecutor (including a private prosecutor) is required to act as a ‘minister of justice’.! Further to
that core general duty, a number of specific duties are imposed upon a prosecutor, principally
with a view to safeguarding the fairness of criminal investigations and proceedings. Those duties
are summarised by Mr Duncan Atkinson KC in his Expert Report, Volume I. Relevantly:
6.1. First, in conducting an investigation, the investigator is required to pursue all reasonable
lines of inquiry, whether these point towards or away from the suspect? The prosecutor is
required to supervise, and to advise upon, the pursuit of all reasonable lines of inquiry.* In
short, the obligation upon the prosecutor is to “inform the investigator if, in their view,
reasonable and relevant lines of further inquiry exist”. 4
6.2. Secondly, a prosecutor is under a duty to conduct an “independent and objective” analysis
of the evidence, prior to commencing proceedings (which analysis should be undertaken
with the “wtmost care” and in an “even-handed” manner) ~ including an analysis “not only
of what evidence exists, but also of whether it is reliable and credible”.* That includes,
where computer data is relied upon in the prosecution case, consideration of the operation
of, and reliability of, that computer system
6.3. Thirdly, a prosecutor is under a duty to disclose to the accused any prosecution material
which has not previously been disclosed, and which reasonably could be considered
capable of undermining the case for the prosecution against the accused, or assisting the
case for the accused.’ Fairness requires that “full disclosure” of such material should be
Farquharson Committee on the Role of Prosecution Counsel; see also Zinga [2014] 1 WLR 2228, $61
(Lord Thomas CJ); R (Kay) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin), $23 (Sweeney J).
Criminal Procedure and Investigations Act Code of Practice (1997 ed), §3.4; see also (2015 ed), §3.5.
EXPG0000002, Expert Report of Duncan Atkinson KC, Volume 1, §98.
3 Attorney General’s Guidelines on Disclosure (2000 ed), §§13-17, 20-21; see also (2005 ed), §§32-40
EXPG0000002, Expert Report of Duncan Atkinson KC, Volume 1, §§260, 272.
4 Attorney General’s Guidelines on Disclosure (2000 ed), §17.
5 Code for Crown Prosecutors, §§2.4, 2.7-2.8, 4.4-4.8; R (Holloway) v Harrow Crown Court [2019]
EWHC 1731 (Admin) at §§19-20 (Mailes J). See EXPG0000002, Expert Report of Duncan Atkinson
KC, Volume 1, §§ 140-146.
6 EXPG0000002, Expert Report of Duncan Atkinson KC, Volume 1, §368; Transcript, 5 October 2023,
p.60, In.21-p.62, In.18 (Mr Duncan Atkinson KC); Transcript, 6 October 2023, p.12, In.19-p.14, In.16
(Mr Duncan Atkinson KC).
Criminal Procedure and Investigations Act 1996, s 3(1).
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given.* This is an ongoing duty, and the prosecutor is required to keep the issue under
review.” Those duties are considered in greater detail in Topic 4, below.
6.4. Fourthly, a prosecutor has a number of important duties in connection with the instruction
of expert witnesses. Those duties are considered in greater detail in Topic 6, below.
Importantly, it is clear that the foregoing duties are personal to the prosecutor; and cannot be
delegated or sub-contracted out to third parties.'° It is no answer to a potential failure by the
prosecutor to discharge those fundamental duties, for the prosecutor to impugn the conduct of
third parties, unless the prosecutor can show that (consistently with their role as a ‘minister of
justice’) they took all reasonable steps to discharge their own duties.
The Inquiry may well conclude, viewing the Phase 4 evidence as a whole, that a number of Post
Office lawyers responsible for the conduct of criminal prosecutions routinely acted in a manner
which was impossible to reconcile with their core duty to act as a ‘minister of justice’. That
included Post Office investigators and lawyers prioritising personal interests,'' or Post Office
business and reputational interests, over the interests of justice, as well as condoning similar
conduct by Post Office investigators. By way of illustration:
8.1. The Inquiry has received evidence of Post Office lawyers zealously and aggressively
pursuing ‘test cases’, with a view to defending the integrity of the Horizon system.'? That
Rv H [2004] 2 AC 134 at $14; Attorney General’s Guidelines on Disclosure (2004 ed), Foreword (Lord
Goldsmith).
See, e.g., Criminal Procedure and InvestigationsAct 1996, s 7A. However, it is clear that the fact that the
duty was an ongoing one was recognised well before the enactment of that provision (see, e.g., § 9 as
originally enacted). Mr Atkinson KC concludes that “the continuing duties of the prosecution as to
disclosure were operative in one form or another throughout the Inquiry’ relevant period”:
EXPG0000002, Expert Report of Duncan Atkinson KC, Volume 1, §227
Transcript, 6 October 2023, p.92, In.4-p.95, In.1 (Mr Duncan Atkinson KC); R v R [2016] 1 WLR 1872
at §§32, 45 (the prosecutor must be “in the driving seat at the stage of initial disclosure”); Alibhai [2004]
EWCA Crim 681.
The Inquiry will recall the evidence that the payment of personal bonuses was linked to the conduct of
prosecutions, and the recovery of apparent shortfalls. See: Transcript, 5 December 2023, p.55, In.1-In.24,
see also p.58, In.4-p.59, In.18; p.61, In.19-p.62, In.5 (Mr David Posnett), see, e.g., POL00126734,
‘Objectives April 2012-March 2013, Dave Posnett — Security Operations Manager, Operations”;
Transcript, 7 December 2023, p.216, In.19-p.219, In.4 (Mr Gary Thomas) (Q. “Did that objective
influence the way in which you acted as an Investigator?” A. “I'd probably be lying if I said no”).
POL00069622, Attendance note of Stephen Dilley dated 11 September 2006, p.5 (“Mandy Talbot said
that the difficulty is [the Castleton case] has almost become a test case in spite of itself”; POL00070020,
Attendance note of Stephen Dilley dated 22 January 2007, p.2 (“Richard [Morgan] also offering to
supply [Mandy Talbot] with a separate note on how she could use the judgment [in Castleton]”);
POL00006650, Transcript of Womble Bond Dickinson interview with Alison Bolsover, dated 9 January
2018, p. 39 (the Castleton case “was seen as the test case of all test cases”); POL00114310, Email chain
dated 17 June 2010 ‘Re: Fw: Old Colwyn 447614 & Conway Road 440614’ (“Jn effect a “test” case is
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attitude led senior Post Office employees to, for example, regard prosecutions resulting in
conviction as an opportunity to “set a marker to dissuade other Defendants from jumping
on the Horizon bashing bandwagon”."? It will be obvious to the Inquiry that such an aim
is incompatible with conducting oneself as a ‘minister of justice’.
8.2. Further, the Inquiry has received evidence that Post Office investigators and lawyers
improperly had regard to Post Office’s financial position (including in relation to the
recovery of ‘missing’ funds) in connection with prosecutorial decision-making. Indeed, it
would be open to the Inquiry to conclude that debt recovery, rather than the interests of
justice, was a pre-eminent motivating factor in the conduct of Post Office prosecutions. +
As Mr Atkinson noted, such an approach is not one which “instils confidence in the
independence, fairness, or transparency” of prosecutorial decision-making. '>
8.3. A mindset and culture which was antithetical to the interests of SPMs was reflected in
internal Post Office correspondence and documentation concerning prosecutions which
resulted in a conviction.'*
Topic 2: Fujitsu’s contractual prosecution support obligations
9. In order to contextualise Fujitsu’s role in the prosecutions and civil proceedings pursued by Post
Office against SPMs and branch staff; it is necessary to have regard to Fujitsu’s contractual
being put through the course relating to this and as such other cases are being put on hold until its
outcome”); Transcript, 28 September 2023, p.50, In.24-p.51, In.5 (Ms Mandy Talbot) (“By February
2006, however, [the Castleton case] had sort of morphed into a test case on Horizon, despite itself. We
believed that it was a pure accountancy issue, in effect, but because of publicity sought, as I say, it was
becoming a test case on Horizon”), p. 160, In.13-14 (“Misra ... had become the next test case on the
Horizon System”); Transcript, 16 November 2023, p.123, In.6-p.126, In.13 (Mr Paul Whitaker).
8 POL00055590, Email chain dated 21 October 2010, ‘Regina v Seema Misra — Guildford Crown Court —
Trial — Attack on Horizon’. See also: POL00107869, Email chain dated 5 February 2013, ‘Mrs Christine
Ann Gourlay (Scotland). In his oral evidence, Mr Jarnail Singh sought to explain that the reference to
prosecution acting as “a deterrent to others” was something he was “specifically asked to consider” by
Mr John Scott: Transcript, 1 December 2023, p.4, In.15-p.5, In.15. The Inquiry is invited to reject that
evidence as obviously implausible.
4 See, for example: POL00084977, ‘Former Subpostmaster End To End Debt Review’, v.0.5, dated
December 2009 (“The objectives of this review are to reduce future debt and improve debt recovery
processes”); Transcript, 5 December 2023, p.60, In.17-p.61, In.4 (Mr David Posnett) (“one element or
one focus” of Post Office’s criminal litigation strategy was “to recover monies owed”, which was “a
significant part” of Post Office’s overall prosecutions policy). See also: POLO0121639, ‘Financial
Investigations: Partnership for Recovery’ (2007/2008), p.3; Transcript, 22 November 2023, p.54, In.10-
p.57, In.10 (Mr Gerald Harbinson) (Q. “Is it fair to say that recovery was a key goal for the Fraud Team”.
A. “It was a goal for the Financial Investigation Team.”).
is EXPG0000002, Expert Report of Duncan Atkinson KC, Volume I, §353.
6 POL00055590, Email chain dated 21 October 2010, ‘Regina v Seema Misra— Guildford Crown Court—
Trial — Attack on Horizon’ (“we were able to destroy to the criminal standard of proof (beyond all
reasonable doubt) every single suggestion made by the Defence”, “It is to be hoped the case will set a
marker to dissuade other Defendants from jumping on the Horizon bashing bandwagon’).
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prosecution support obligations, and the way in which those obligations developed over time. For
the avoidance of doubt, these submissions do not address the contractual relationship between
SPMs and Post Office (as the Inquiry is aware, Fujitsu does not have any direct contractual
relationship with SPMs). By way of summary of the significant developments over time:
Fujitsu has, since the signing of the Codified Agreement on 28 July 1999 (the “Codified
Agreement”), been contractually obliged to provide Post Office with some form of prosecution
support services. The precise nature of that obligation was varied (and, expanded) over time. In
each case, the prosecution support obligation was the product of contractual negotiations between
Fujitsu and Post Office. That feature of the development of the prosecution support services is
significant to the extent that several Post Office witnesses suggested that limitations inherent in
the contractual arrangements between Post Office and Fujitsu affected their conduct of
investigations and prosecutions. Of course, any ‘limitations’ (such as they were) were the product
of express agreement by Post Office, and were liable to be renegotiated by Post Office at any
time. Further, the underlying documentation suggests (unsurprisingly) that Post Office staff who
were engaged in the operation of the contract were involved in the granular detail of Fujitsu’s
contractual obligations, and thus were aware of the complexities thereof.'’
Under the Codified Agreement (from 28 July 1999 to 30 December 2002) Fujitsu’s prosecution
support obligations were narrow in scope. The Codified Agreement specified that Fujitsu was
obliged to ensure that relevant information provided at the request of Post Office was
“evidentially admissible and capable of certification in accordance with the Police and Criminal
Evidence Act (PACE) 1984, the Police and Criminal Evidence (Northern Ireland) Order 1989
and equivalent legislation covering Scotland”. Fujitsu was also obliged to retain “/an] audit trail
and other information necessary to support live investigations and prosecutions... for the
duration of the investigation and prosecution”.'®
In this early period, Fujitsu was not under any contractual obligation to provide witness
statements (factual or expert), nor to make witnesses available in court proceedings.'? Any
See, for example, the evidence cited at fn 206, below.
FUJO00000071, Codified Agreement, 28 July 1999, §§4.1.8 and 4.1.9, p.97. See also, §1.133 of Schedule
A15 (Requirement 829) (ibid, p.249-250).
See for example FUJ00079875, Operational Manual for the Customer Services Directorate, v1, 26
November 2001, p. 86 and FUJ00079888, Operational Manual for the Customer Services Directorate’,
v2, I May 2002 which provided that “Fujitsu Services Pathway has no current contractual obligation to
provide prosecution support to POL. CS Security currently provide this supporton a “without prejudice”
basis pending contractual agreement” (§3.14.25) and “CS Security provides witnesses to attend Court if
required to support statements. Whilst Fujitsu Services Pathway has no contractual obligation to do this
it does so to avoid formal subpoena. CS Security personnel provide statements of fact. They are not expert
2B
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specific support provided by Fujitsu was the result of Post Office raising an ad hoc Change
Request. See for example the draft document titled ‘Network Banking Management of
Prosecution Support’ (v0.1, dated 11 February 2002)? which records the parties’ position at the
time that:
“Provision of prosecution support for the existing [Horizon] service has not been agreed
under contract .... Provision of the current data retrieval support service is based upon an
informal agreement between the Director of Horizon Commercial and the Director of
Pathway Quality. [...] The provision of litigation support (specifically the provision of
witness statements) is similarly not formalised and is currently provided on a “without
prejudice subject to contract” basis pending the receipt of an appropriate Change
Request” (§1.1).7!
This document provided that record queries were to be made “via the Record Query Form” which
was “agreed” between Post Office and Fujitsu (§3.3, p. 10, and Appendix 1, p. 25).
Broader obligations relating to prosecutorial and litigation support were first introduced in the
Horizon Contract effective from 31 December 2002. Under the Horizon Contracts effective from
31 December 2002 to 15 August 2006, Fujitsu’s prosecution support and record keeping
obligations were set out in the relevant part of the ‘Service Description for Security Management
Service’? CCD (the “Security Management Service CCD”).” This provided as follows:
13.1. Under the Security Management Service CCD, Post Office could raise Audit Record
Queries (“ARQs”), which involved, inter alia, Fujitsu extracting records relating to
transactions from the audit trail (§$3.10.1).
witnesses. Where expert witness testimony is required other members of Fujitsu Services Pathway or ISD
Operations may be required” (§3.14.25.4).
FUJ00152189, Network Banking Management of Prosecution Support’, v0.1, 11 February 2002, p. 7.
The agreed version I of the CCD (FUJ00152205, v1, 26 November 2002) states that: “Prior to Network
Banking contract signing this provision [of prosecution support] was supported under a CR [Change
Request] received to request such a facility... The provision of prosecution support (specifically the
provision of witness statements of fact) was similarly not formalised and was provided on a “without
prejudice subject to contract” basis pending the receipt of the aforementioned Change Request” (§2).
FUJ00001743, Service Description for the Security Management Service v1, 6 January 2003;
FUJ00176273, Service Description for the Security Management Service v2, 4 December 2004;
FUJ00002000, Service Description for the Security Management Service v3, 6 March 2006. This CCD
was referred to in Schedule 19 of the Horizon Contracts effective between 31 December 2002 to 15
August 2006, which set out the Operational Services which were to be performed by Fujitsu.
In the contractual relationship between Post Office and Fujitsu, a ‘Contract Controlled Document’ or
“CCD” is a document providing further detail as to the parties’ respective contractual obligations. A CCD
is a contractual document, agreed between the parties. FUJ00000071, the Codified Agreement, 28 July
1999 describes a CCD as “A document which is referred to in this Codified Agreement and which the
parties have agreed may only be amended through the Change Control Procedure”, p.73.
24
25
26
27
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13.2. At Post Office’s request, Fujitsu could also be required to, in responding to ARQs raised
by Post Office, (i) present records of transactions extracted by that query in a format agreed
between Post Office and Fujitsu, (ii) analyse certain records, reports and logs, including
“fault logs for the devices from which the records of Transactions were obtained”, (iii)
prepare witness statements of fact in relation to that query “to the extent that such
statements are reasonably required for the purpose of verifying the integrity of the
records”, and (iv) allow its employees to attend court to give evidence.”*
13.3. Fujitsu was required to provide the support at (ii) and (iii) above up to a maximum number
of ARQs per year on a rolling year basis. Furthermore, Fujitsu was required to provide
witnesses to attend court for up to a maximum number of days per year on a rolling year
basis.”5
13.4. While there was no provision for a charge payable per ARQ, there was an annual charge
payable for the Security Management Service (pursuant to which prosecution support
services were provided by Fujitsu).”° This annual charge was liable to be increased if Post
Office varied the maximum number of ARQs that Fujitsu was required to carry out per
year.?7
The agreements relevant to the implementation of HNG-X (effective from 31 August 2006 to
present) imposed materially identical obligations as those set out in the Security Management
Service CCD, subject to minor changes. These obligations were set out in the Security
Management Service: Service Description CCD (§2.1.13.1) and included the provision that any
information, witness statements or witness attendance beyond the limits set out in the CCD shall
“be agreed on a case by case basis and shall be dealt with in accordance with the Change Control
Procedure” (§2.1.13.3).8
FUJ00001743, Service Description for the Security Management Service v.1, 6 January 2003 (§3.10.8)
Ibid.
See FUJ00000074, FUJ00000087, FUJ00000079, FUJ00000080, FUJO0000081, FUJ00000082,
FUJ00000083, clause 10.1.1 and Schedule 10, paragraph 2 of the Horizon Contracts effective between
31 December 2002 to 15 August 2006.
See FUJ00000074, FUJO0000087, FUJ00000079, FUJO0000080, Schedule 10, paragraph 5.12 and
FUJ00000081, FUJ00000082, FUJO0000083, Schedule 10, paragraph 5.14 of the Horizon Contracts
effective between 31 December 2002 to 15 August 2006.
FUJ00088 180, Security Management Service: Service Description v1, 24 August 2006;
FUJ00088337, Security Management Service: Service Description v2, 31 December 2008;
FUJ00088683, Security Management Service: Service Description v3, 15 October 2010; FUJ00088869,
Security Management Service: Service Description v4, 4 December 2013; FUJ00088897, Security
Management Service: Service Description v5, 4 April 2014; FUJ00089152, Security Management
Service: Service Description v6, 21 May 2015; FUJ00232973, Security Management Service: Service
Description v8, 26 April 2023.
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A more extensive prosecution support obligation was provided for in version 9 of the Horizon
Contract which was effective from 13 January 2014. That amendment was given effect through
CCN1400, which amended clause 25 of version 9 of the Horizon Contract (and all subsequent
versions). Clause 25 stipulates that Fujitsu is obliged to provide “Court Case Support Services to
Post Office in relation to prosecutions and other disputes (whether civil or criminal) with any
third party” (clause 25.8).”°
The scope of the “Court Case Support Services” is set out at clause 25.9, and includes (i) “the
provision of data (including transaction data, event logs, helpdesk call logs, non-polled data and
remuneration data) where such data is held by or in the control of Fujitsu Services” (clause
25.9.2); (ii) “the provision of technical reports regarding technical aspects of any system (whether
Horizon, HNG-X or otherwise)” (clause 25.9.5); and (iii) “live witness evidence at Court if any
of the information provided... is challenged to the extent to which Fujitsu Services provided said
information” (clause 25.9.6). Further, clause 25.10 provides that, to the extent Fujitsu’s costs in
providing the “Court Case Support Services” are not recoverable charges under the Horizon
Contract, then Fujitsu “shall be entitled to charge (and Post Office shall pay) additional
reasonable and demonstrable costs provided Fujitsu Services can evidence such costs to Post
Office s reasonable satisfaction and wherever possible agree them in advance with Post Office”.
That clause 25 is replicated in all subsequent versions of the Horizon Contract, including version
14 (issued on 20 December 2021).*°
Notwithstanding the apparent breadth of those contractual obligations, it is a recurrent feature of
the case studies examined by the Inquiry in Phase 4 that, for a number of those case studies: (i)
no ARQ data was obtained by Post Office from Fujitsu;*! (ii) no Fujitsu witnesses were requested
to give evidence on behalf of Post Office;*? and, in many cases (iii) there is no evidence of direct
contact between Post Office and Fujitsu whatsoever.*> To some extent, this suggests that,
FUJO0001095, CCN1400, 11 September 2013.
FUJ00234786, Horizon Contract v14, 20 December 2021.
This appears to be true in the cases of: Ms Lisa Brennan, Mr David Yates, Mr David Blakey, Mr Tahir
Mahmood, Mr Carl Page, Ms Suzanne Palmer, Ms Joan Bailey, and Ms Allison Henderson. See:
Transcript, 18 December 2023, p.96, In.1-In.8; p.96, In.14-p.97, In. 16; p.97, In.17-p.99, In.2; p.102, In.4-
p.103, In.7; p.106, In.3-In.11; p.106, In.12-In.25; p.118, In.7-p.119, n.7; p.119, In.14-p.120, In.3 (Mr
Duncan Atkinson KC).
This appears to be true in the cases of: Ms Lisa Brennan, Mr David Yates, Mr David Blakey, Mr Tahir.
Mahmood, Ms Suzanne Palmer, Ms Joan Bailey, and Ms Allison Henderson. See: Transcript, 18
December 2023, p.96, In.1-In.8; p.96, In.14-p.97, In.16; p.97, In.17-p.99, In.2; p.102, In.4-p.103, In.7;
p.106, In.12-In.25; p.118, In.7-p.119, In.7; p.119, In.8-p.120, In.3 (Mr Duncan Atkinson KC).
This appears to be true in the cases of: Ms Lisa Brennan, Mr David Yates, Mr David Blakey, Mr Tahir
Mahmood, Ms Suzanne Palmer, Ms Joan Bailey, and Ms Allison Henderson. See: Transcript, 18
December 2023, p.96, In.1-In.8; p.96, In.14-p.97, In.16; p.97, In.17-p.99, In.2; p.102, In.4-p.103, In.7;
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notwithstanding the apparent breadth of Fujitsu’s contractual prosecution support obligations, the
extent to which those contractual obligations were in fact called upon in practice was more
limited. In view of that evidence, where issues arise concerning the nature of the support provided
by Fujitsu to Post Office in relation to criminal and civil proceedings, it is necessary to closely
scrutinise the precise support which was sought in any given case. It cannot be assumed that,
simply because the proceedings arose from data produced by the Horizon system, it follows
necessarily that Fujitsu provided particular support in relation to those proceedings (or, even, that
it was necessarily aware of the existence of the relevant proceedings). Of course, Fujitsu accepts
that in some cases, although Fujitsu provided no particular support to a prosecution or civil claim
(for example, by the specific extraction of ARQ data, or the provision of a witness statement), it
is nonetheless clear that information derived from the Horizon system was instrumental to a
number of the wrongful prosecutions and civil proceedings pursued against SPMs. Further,
Fujitsu accepts that, once support was provided by Fujitsu to Post Office in a particular case (for
example, in the form of witness evidence), Fujitsu lacked control, and typically lacked
knowledge, as to how that evidence would be deployed by Post Office in that case, or in any
subsequent cases.
In the course of Phase 4, the Inquiry has sought to explore whether the introduction of the Horizon
system resulted in an increase in the number of prosecutions and civil claims against SPMs. It is
submitted that the available evidence does not permit the Inquiry to draw any clear conclusion in
that regard. That is so because, both: (i) the available evidence is known to be incomplete and of
a poor quality;** and (ii) to the extent that the evidence may be relied upon, it appears to suggest
a trend of increasing prosecutions between 1996 and 1999 — i.e., prior to the introduction of
Horizon — which figures remained relatively constant thereafter.>
p.106, In.12-In.25; p.118, In.7-p.119, In.7; p.119, In.14-p.120, In.3 (Mr Duncan Atkinson KC). Mr
Atkinson further stated that the position was “not absolutely clear” in relation to the case of Mr Peter
Holmes because, while “a degree of Horizon material’ was obtained, the source of that material was
unclear, and there was no evidence of “the results of any such contact [with Fujitsu], or, indeed, any
document that set out such contact”: Transcript, 18 December 2023, p.110, In.8; p.111, In.2 (Mr Duncan
Atkinson KC).
WITN09890100, First Witness Statement of Simon Recaldin, dated 30 March 2023; WITN09890200,
Second Witness Statement of Simon Recaldin, dated 13 July 2023; WITN09890208, Appendix II to the
Second Witness Statementof Simon Recaldin (and, in particular, the material under the heading ‘Notes’);
WITN09890300, Third Witness Statement of Simon Recaldin, dated 29 September 2023; Transcript, 29
September 2023, p.109, In.1-In.20 (Mr Simon Recaldin).
WITN09890208, Appendix II to the Second Witness Statement of Simon Recaldin.
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Topic 3: Post Office criminal investigations
20. Asignificant amount of the evidence in Phase 4 concerned the conduct of criminal investigations
on behalf of Post Office. It is anticipated that other Core Participants will make more detailed
submissions regarding the conduct of investigators in individual case studies. Fujitsu makes the
following five over-arching observations:
21. First, it is clear that a significant number of individuals involved in the investigation and
prosecution of SPMs were in fact aware of the existence of bugs, errors, and defects (“BEDs”)
within the Horizon system and other relevant Post Office and third party accounting systems, and
were further aware that such BEDs had the capacity to impact upon the integrity of branch
accounts. As to that:
21.1. The evidence establishes that at /east the following individuals involved in the
investigation and prosecution of SPMs had contemporaneous awareness of the existence
of BEDs within the Horizon system and other relevant Post Office and third party systems,
and were further aware that such BEDs had the capacity to impact upon the integrity of
branch accounts: Ms Alison Bolsover,** Mr Steve Bradshaw,*’ Mr Graham Brander,** Mr
John Breeden,*? Ms Marie Cockett,*” Ms Elaine Cottam;*! Mr Jim Cruise,*? Mr Mark
Dinsdale,** Mr Paul Inwood,** Mr Christopher Knight,** Mr John Longman,*° Ms Jessica
“6 Transcript, 19 October 2023, p.113, In.2-24 (Ms Alison Bolsover).
7 POL00165450, Email chain dated 4 June 2014, *GY:15665193— Notice #4 — P2 —- SERVICE/SYSTEMS
DOWN OR OFFLINE — Issues with transfer acknowledgment in National Lottery system — this is
causing duplicate tickets’.
8 POL00044389, Post Office Ltd Investigation report for Josephine Hamilton, dated 17 May 2006, pp.5-
6,8.
” POL00095547, Email chain dated 22 March 2011-21 April 2011, ‘FW: Scope of Declarations’, pp.1, 3.
“0 Transcript, 20 October 2023, p.58, In.24-p.60, In.6 (Ms Marie Cockett).
“I FUJ00055 145, PinICL PC0056916, opened 2 November 2000, p.3 (Ms Cottam is reported as having said
that “one of the SU's had something added to it, whilst rolling over”).
2 POLO00118236, Email chain dated 17 March 2004-19 May 2004, ‘Cleveleys MSPO Mrs J.
Wolstenholme’, p.2 (nb. Reference to Best Practice ple Expert Report)
8 FUJ00153 132, Email chain dated 30 June 2010-15 July 2010, ‘RE: Duplication of Transaction Records
in ARQ Returns’.
“4 POL00114930, Email chain dated 7 May 2009-8 May 2009, ‘Fw: Re letter from BERR re challenge to
Horizon integrity’, p.1 and Transcript, 13 October 2023, p.29, In.24—p.30, In.3; POL00114697, Email
chain dated 5 September 2011, ‘Mr, Julian Wilson, Astwood Bank, FAD 346 246’, pp.1, 7.
45 POLO00021 244, Transcript of interview with Ms Alison Hall, p.5 (“J think its to do with discrepancy with
the lottery, and I'm hoping that we can come to the bottom of this. ... But I just want all this to be looked
at in detail and because Horizon system’ not 100 per cent, if I've got all the details here. I'd like that to,
um, be taken into account, please”).
46 FUJO0153157, Email chain dated 22-27 July 2010, ‘RE: REGINA V SEEMA MISRA — GUILDFORD
CROWN COURT - TRIAL’.
47
48
49
6
62
SUBS0000026
Madron,*” Ms Diane Matthews;** Ms Juliet McFarlane,*? Mr Tony Marsh,*° Ms Jane
Owen,*! Ms Catherine Oglesby,*? Mr David Pardoe,*> Mr Thomas Pegler,*! Mr David
Posnett;*> Mr Colin Price,** Ms Helen Rose,*’ Mr Kevin Ryan,*® Mr Jarnail Singh,*? Mr
Alan Simpson, Mr Martin Smith,°! Ms Mandy Talbot,®? Mr Warwick Tatford,® Mr Gary
POL00114930, Email chain dated 7-8 May 2009, ‘Fw: Re letter from BERR re challenge to Horizon
integrity’, p.1.
Transcript, 24 November 2023, p.8, In.20-p.9, In.21; p.11, In.11-p.13, In.4 (Ms Diane Matthews) (“/ was
aware there was issues, yes”).
FUJ00153132, Email chain dated 30 June 2010-15 July 2010, ‘RE: Duplication of Transaction Records
in ARQ Returns’.
Transcript 5 July 2023, p.158, In.1—p.159, In.2 (Mr Tony Marsh).
FUJO0153132, Email chain dated 30 June 2010-15 July 2010, ‘RE: Duplication of Transaction Records
in ARQ Returns’.
Transcript, 16 November 2023, p.146, In. 4-In. 23 (Ms Catherine Oglesby)
POL00165450, Email chain dated 4 June 2014, ‘GY:15665193 — Notice #4 — P2 - SERVICE/SYSTEMS.
DOWN OR OFFLINE ~ Issues with transfer acknowledgment in National Lottery system — this is
causing duplicate tickets’; Transcript, 29 November 2023, p.112 In.19-23 (Mr David Pardoe) (“Q. ... On
its face, this seems to be reporting a systems issue, meaning that Camelot branches would not be able to
balance; is that your understanding of it? A. It does, yes”); POLO0165493, Email chain dated 10 July
2014, *GY:15804252 — Notice #2 — P1 — SERVICE/SYSTEMS PERFORMANCE DEGRADED —
Reference Data Integrity Not proven error in Horizon’.
Transcript, 13 October 2023, p.156, In.12-p.157, In.14 (Mr Thomas Pegler).
Transcript, 6 December 2023, p.29, In.4-p.30, In.4 (Mr David Posnett).
POL00044389, Post Office Ltd Investigation report for Josephine Hamilton, dated 17 May 2006, pp.5-
6, 8.
Transcript, 19 September 2023, p.99, In.15-p.100, In.4 (Ms Helen Rose), referring to POL00097481,
Email chain dated 7-13 February 2013, ‘RE: Lepton logs’, p.3 (“I know you are aware of all the horizon
integrity issues”). See also: FUJO00868 11, ‘Horizon data Lepton SPSO 191320’, dated 12 June 2013,
p.2.
POL00165450, Email chain dated 4 June 2014, ‘GY:15665193— Notice #4 — P2 - SERVICE/SYSTEMS.
DOWN OR OFFLINE ~ Issues with transfer acknowledgment in National Lottery system — this is
causing duplicate tickets’; POL00044222, ‘Area Intervention Manager Visit Log’ in relation to the
Fazakerley Branch, dated 6 September 2005, p.1; POL00044223, ‘Area intervention manager visit log’
-in relation to the Fazakerley branch dated 6 February 2006, p.1 and Transcript 13 December 2023, p.161,
In.14-p.163, In.2 regarding GiroBank errors.
FUJ00152930, Email chain dated 5 February 2010 ‘RE: WEST BYFLEET ISSUES — SEEMA MISRA
~ Legally Privileged’, p.1 (“It is possible for there to be problems where transactions have been “lost”
in particular circumstances due to locking issues.”); Transcript, I December 2023, p.107, In.19-p.108,
In.9 (Mr Jarnail Singh) (Mr Singh agreed that this was “a huge red flag” and that it does not “get any
more significant than that”).
POL00165450, Email chain dated 4 June 2014, ‘GY:15665193 — Notice #4 — P2 - SERVICE/SYSTEMS
DOWN OR OFFLINE ~ Issues with transfer acknowledgment in National Lottery system — this is
causing duplicate tickets’; FUJ00153132, Email chain dated 30 June 2010-15 July 2010, ‘RE:
Duplication of Transaction Records in ARQ Returns’; FUJ00081584, ‘Receipts/Payments Mismatch
issue notes’, p.1.
POL00043371, POL Meeting Minutes to discuss Horizon Issues, dated 16 October 2013.
Transcript, 28 September 2023, p.75, In.15-p.76, In.11 (Ms Mandy Talbot) (“we had become aware of
potential glitches”).
WITN09610100, First Witness Statement of Warwick Henry Patrick Tatford, dated 25 October 2023,
$i.
68
69
SUBS0000026
Thomas, Mr Graham Ward,® Mr Paul Whitaker,“° Ms Sarah White,°? Mr Michael
Wilcox;°* Ms Suzanne Winter,°’ and Mr Andrew Wise.”
21.2. The Inquiry will observe, from the foregoing list of names, that the individuals identified
(i) came from a range of teams within Post Office, (ii) were of varying levels of seniority
within Post Office, (iii) include Post Office’s external advisors, and (iv) worked at or with
Post Office throughout the Inquiry’s relevant period. The Inquiry will further note that the
foregoing list includes a number of individuals with particularly significant decision-
making and oversight roles in connection with the commencement of civil and criminal
proceedings against SPMs, including Mr Stephen Bradshaw, Mr Jarnail Singh, Mr Graham
Ward, and Mr Rob Wilson.
21.3. That a significant number of individuals with different roles involved in the investigation
and prosecution of SPMs had contemporaneous awareness of the existence of BEDs within
the Horizon system undoubtedly reflects the fact that, as Fujitsu submitted in its Phase 3
closing submissions, knowledge of those matters was widespread within Post Office.”!
Fujitsu does not propose to repeat those submissions as to the various ways in which
information concerning the existence of identified BEDs was known to, and communicated
by Fujitsu to, Post Office. It is also clear that the knowledge was disseminated across a
number of Post Office departments (e.g., security, product and branch accounting,
investigations, legal, etc.). However, that background provides important context to the
conduct of criminal investigations by Post Office.
POL00107562, Email from G. Thomas to G. Adderley, H. Rose and P. Southin dated 10 November 2011,
“48 Hour Offender Reporting— Yetminster ~ POLTD’; Transcript, 7 December 2023, p.210, In.20-p.211,
In.15 (Mr Gary Thomas).
POLO00119895, ‘Meeting Notes — Horizon Integrity’, dated 6 December 2005, p.3, §12; FUJ00152587,
Email chain dated 10-28 March 2006, ‘Gaerwen statement’.
Transcript, 16 November 2023, p.121, In.9-p.122, In.12 (Mr Paul Whitaker).
POLO00114930, Email chain dated 7-8 May 2009, ‘Fw: Re letter from BERR re challenge to Horizon
Integrity’, p.1.
POL00172809, ‘Security 4 Weekly Report’, dated 12 March 2010, p.3 (nb heading ‘Security programmes
for products’, and the contents thereunder). This document was sent to, inter alia, Mr Wilcox, see:
POL00172808, Email chain dated 12 March 2010, ‘Security — 4 Weekly Highlight Report 12 March
2010’.
POL00165450, Email chain dated 4 June 2014, ‘GY:15665193— Notice #4 — P2 - SERVICE/SYSTEMS.
DOWN OR OFFLINE ~ Issues with transfer acknowledgment in National Lottery system — this is
causing duplicate tickets’.
Transcript, 20 September 2023, p.54, In.3-In.9, p.109, In.10-p.110, In.12; p.110, In.21-p.112, In.3 (Mr
Andrew Wise); cf WITN090901 00, First Witness Statement of Mr Andrew Wise, dated 31 May 2023 at
§87.
SUBS0000025, Phase Three Closing Submissions on Behalf of Fujitsu Services Limited, §§3-10.
12
B
4
16
19
80
81
83
84
85
SUBS0000026
21.4. The Inquiry may consider that a striking feature of the evidence in Phase 4 was the
significant number of Post Office witnesses who initially (i.e. in their witness statements)
denied any knowledge whatsoever of BEDs in the Horizon system and other relevant Post
Office and third party systems, but who subsequently (i.e. following the provision of
documents, often arising from very late disclosure) were forced to concede that
contemporaneous evidence established that they did, in fact, have such knowledge. Such
witnesses included: Mr Andrew Bolc,” Mr Stephen Bradshaw,” Mr Graham Brander,”
Ms Marie Cockett,”> Mr Andrew Hayward, ° Mr Thomas Pegler,”” Mr Gary Thomas,”* Mr
Graham Ward,” and Mr Andrew Wise.*° The Inquiry will well appreciate the significance
of those shifts in evidence (including because they serve to demonstrate the potential
significance of ‘gaps’ in disclosed contemporaneous documentary evidence, where the
witness’ current memory may be lacking).
21.5. Further, a number of the individuals involved in the investigation and prosecution of SPMs
expressed the (undoubtedly correct) view that an IT system of the scale and complexity of
the Horizon system was overwhelmingly likely (notwithstanding attempts at remediation)
to have some level of BEDs inherent to the system — including unknown BEDs. See, for
example, the evidence of: Mr Martin Ferlinc,*! Mr David Posnett;** Mr Michael Wilcox; **
Mr Graham Ward,* and Mr Warwick Tatford.** More concerning, however, is the fact that
Transcript, 15 December 2023, p.2, In.1-In.16 (Mr Andrew Bole) (“Subsequent to this statement, I
received further documentation including an email I was copied into. [...] I suspect that would be counted
as potentially a defect in the system”).
Transcript, 11 January 2024, p.57, In.2-p.58, In.14 (Mr Stephen Bradshaw).
Transcript, 28 November 2023, p.81, In.22-p.84, In.19; p.92, In.18-p.93, In.24 (Mr Graham Brander).
Transcript, 20 October 2023, p.58, In.24-p.60, In.6 (Ms Marie Cockett). See also: Transcript, 20
October 2023, p.49, In.16-p.50, In.3 (Ms Marie Cockett) (having been shown various emails regarding
BEDs, Ms Cockett conceded “/ think, given the fact that I was copied in on these emails, yes, Imust have
been aware of but I don t remember them now”).
Transcript, 10 October 2023, p.113, In.4-In.6 (Mr Andrew Hayward); cf Transcript, 10 October 2023,
p.117, In.1-p.118, In.6 (Mr Andrew Hayward).
Transcript, 13 October 2023, p.156, In.12-p.157, In.14 (Mr Thomas Pegler).
Transcript, 7 December 2023, p.210, In.7-In.19 (Mr Gary Thomas) (Q. “Throughout your statement, and
again today, you've emphasised that you were not aware of any bugs, errors or defects in Horizon while
you were an Investigator. But do you accept that, during your time as an Investigator, you'd been told by
multiple sub-postmasters that they were having problems with Horizon?” A. “I wouldn't say multiple but,
yeah” Q. “More than one?” A. “More than one, yes”).
Transcript, I February 2024, p.112, In.10-p.113, In.20 (Mr Graham Ward).
Transcript, 20 September 2023, p.54, In.3-In.9, p.109, In.8-p.110, In.12; p.110, In.23-p.112, In.3 (Mr
Andrew Wise); cf WITN09090100, First Witness Statement of Mr Andrew Wise, dated 31 May 2023 at
$87.
Transcript, 4 July 2023, p.84, In.14-p.86, In.5 ("Okay. I mean, in terms of bugs, I suppose, from my
perspective at the time and even now, would be that any software will have some bugs. That's why we
have software updates and fixes.”).
Transcript, 5 December 2023, p.58, In.11-p.59, In.4 (Mr David Posnett).
Transcript, 7 December 2023, p.60, In.12-p.62, In.25 (Mr Michael Wilcox).
WITN10590100, First Witness Statement of Graham Ward, 4 January 2024, §112.
Transcript, 15 November 2023, p.193, In.15-p.194, In.1 (Mr Warwick Tatford).
13
22.
86
87
88
89
90
SUBS0000026
the appreciation of that obvious fact about complex IT systems rarely appeared to impact
upon those individuals’ approach to the investigation and prosecution of SPMs. The
Inquiry may well conclude that, despite recognising the fact that there were likely BEDs
inherent to the system, there was a persistent failure by Post Office investigators and
lawyers to appreciate the obvious significance of that fact and/or to act upon it in the
context of particular alleged ‘shortfalls’.
21.6. Further, it is clear that a number of individuals involved in the investigation and
prosecution of SPMs acquired significant knowledge regarding the impact of BEDs in the
Horizon system over the course of the Inquiry’s relevant period — not least, because a
number of those involved in the investigation and prosecution of SPMs were (or became)
aware of a number of cases in which SPMs had called into question the integrity of the
system.*°
By way of illustration, in February/March 2010," several internal meetings were held across a
number of Post Office teams (including, relevantly, the security and legal teams) to address
‘Horizon disputed cases’.** The Inquiry may well consider that several features of the
contemporaneous documentation in relation to those meetings are of real significance:
22.1. First, it is clear that the impetus for these meetings was a recognition within Post Office
that there were a number of cases in which “the accused's defence was/is that the Horizon
data is unreliable” — and that (at that time) Post Office had no complete list of such cases.”
Mr John Scott accepted that this ought to have been a matter of “significant concern” to
him as Post Office Head of Security.°°
22.2. Secondly, the original agreed outcome of those meetings, as initially communicated by Mr
Andrew Hayward, was to “conduct full investigations into integrity issues, with
conclusions / report provided”, which investigation was to receive “external verification
See, e.g., POL00106867, Email chain dated 25 February 2010 to 3 March 2010, *Re: Fw: Challenges to
Horizon’.
In fact, similar meetings had taken place since at least 2005, see: POL00119895, ‘Meeting Notes —
Horizon Integrity’, dated 6 December 2005.
POL00106867, Email chain dated 25 February 2010 to 3 March 2010, ‘Re: Fw: Challenges to Horizon’.
Transcript, 11 October 2023, p.142, In.15-In.19 (Mr John Scott) (Q. “does it follow that, by ... February
2010, there was no central repository of es that subpostmasters had raised with the integrity of
Horizon data?” A. “Not that I can recall.").
POL00106867, Email chain dated 25 February 2010 to 3 March 2010, ‘Horizon disputed cases’, p.27.
Transcript, 11 October 2023, p.153, In.3-In.20 (Mr John Scott). The Inquiry is invited to reject the
(hindsight, self-serving) contrary evidence of Mr Tony Usting that he “wouldnt have considered [the
2005 Horizon integrity issues] to be massively significant to me”: Transcript, 17 November 2023, p.81,
In.7-In.11 (Mr Tony Utting). That evidence is obviously implausible.
14
1
93
94
22.4.
SUBS0000026
to give a level of ‘external gravitas’ to the response to these challenges”. It is clear that
the concern related to the integrity of data produced by the Horizon system (“the veracity
of Horizon”).
. Thirdly, that initial proposal drew strong criticism from Mr Rob Wilson, then Post Office
Head of Criminal Law.*? Mr Wilson’s email response is plainly a document of considerable
importance, which the Inquiry will wish to consider with great care. In relation to that
response, Fujitsu notes the following: (i) Mr Wilson plainly recognised that issues with the
integrity of the Horizon system, if well founded, threatened Post Office’s ability “to
commence or continue to proceed with any criminal proceedings”, (ii) Mr Wilson also
plainly recognised that the documented report of any investigation (whether external, or
internal) into issues concerning the integrity of the Horizon system “will be disclosable as
undermining evidence” in pending and concluded criminal investigations; (iii) Mr Wilson
also appeared to recognise, by implication, that the fact of any investigation into issues
concerning the integrity of the Horizon system may be disclosable in pending cases (“/f
we were to secure convictions in the knowledge that there was an investigation, where the
investigation established a difficulty with the system we would be open to criticism and
appeal to the Court of Appeal’); but (iv) Mr Wilson appeared to regard the foregoing as a
reason not to proceed with “full investigations into integrity issues”, as proposed by Mr
Hayward. Fujitsu notes that Mr Wilson denied that the latter point reflected his intention
in sending this email.°> However, the Inquiry may well consider that there is sufficient
evidence to reject Mr Wilson’s (hindsight, self-serving) explanation, and to conclude that
in fact his intention was to dissuade those involved from proceeding with “full
investigations into integrity issues”. That is, certainly, a more natural reading of Mr
Wilson’s email, and is consistent with how that email was understood by its recipients,
both at the time (as below), and in their evidence before the Inquiry.“
Fourthly, and apparently in response to Mr Wilson’s email, Ms Sue Lowther, a member
of the Post Office Information Security team, confirmed that the intention was to conduct
“a ‘general’ due diligence exercise on the integrity of Horizon”, designed “to confirm our
[that is, Post Office's] belief in the robustness of the system and thus rebutt [sic] any
POL00106867, Email chain dated 25 February 2010 to 3 March 2010, ‘Re: Fw: Challenges to Horizon’,
p.3.
pl.
Transcript, 12 October 2023, p.162, In.1
POL00106867, Email chain dated 25 February 2010 to 3 March 2010, ‘Re: Fw: Challenges to Horizon’,
164, In.11 (Mr Rob Wilson).
Transcript, 11 October 2023, p.158, In.4-In.11 (Mr John Scott) (Mr Scott agreed that the email read as
Mr Wilson saying “/f we get on and investigate, we'll be in serious trouble if we do”).
15
23.
95
96
97
98
99
100
SUBS0000026
challenges”.°> As Ms Lowther clarified, the intention was “fo examine that the Security
controls that we have specified for Horizon and those systems with which it interfaces are
indeed in place and working correctly”.°® That is, plainly, a considerably more limited
inquiry than the “full investigations into integrity issues” (with external input) previously
proposed.
Notwithstanding the foregoing, the Inquiry may well consider that there is significant evidence
of the ‘siloing’ of information within Post Office — and, in particular, a systemic failure to share
information known about particular BEDs. The extent to which that ‘siloing’ of information may
have impacted upon Post Office’s fulfilment of its disclosure obligations is addressed in Topic 4,
below. For present purposes, it is sufficient to note that the fact of ‘siloing’ of relevant information
within Post Office is evident from, at least, the following:””
23.1. A number of Post Office witnesses gave evidence that they believe that they ought to have
been told about significant information known elsewhere within Post Office concerning
BEDs.** By way of illustration, when, in the course of her evidence to the Inquiry, Ms
Deborah Stapel was shown a note of a joint meeting between Post Office and Fujitsu
concerning ‘Receipts/Payments Mismatch issue’,” Ms Stapel described the document as
“dynamite”, and noted that the information set out in that meeting note “should have been
relayed both to the Criminal Law Team and Civil, and it would look as if this was being
hidden”.'® Ms Stapel candidly (and, correctly) accepted that the note ought to have been
disclosed to the defence.
POL00106867, Email chain dated 25 February 2010 to 8 March 2010, ‘Re: Fw: Horizon disputed cases’,
p.23.
POL00106867, Email chain dated 25 February 2010 to 8 March 2010, ‘Re: Fw: Horizon disputed cases’,
p.7.
See, further: SUBS0000025, Phase Three Closing Submissions on Behalf of Fujitsu Services Limited at
§10, and the evidence cited therein.
Indeed, most (if not all) witnesses who were asked agreed that they ought to have been informed about
BEDs. See, for example: Transcript, 18 October 2023, p.10, In.21-In.25 (Mr Alan Lusher) (In relation to
the Callendar Square bu; ‘ve never heard of that bug or defect before and, yes, it would have been
helpful to be aware”); Transcript, 14 November 2023, p.72-In.1-In.21 (Ms Deborah Stapel) (“I think it
defies belief what happened. I think its unbelievable that, even at the rollout stage, people were aware
that there were technical issues and they were kept hidden"); Transcript, 28 November 2023, p.80, In.21-
p.81, In.21 (Mr Graham Brander) (“I’m not aware of anyone that knew any bugs, errors, or defects and
you would have thought that we would have been advised of that.”); Transcript, 7 December 2023, p.16,
In.24-p.17, In.16 (Mr Michael Wilcox) (“At no stage did anybody sit me down or call a team meeting
and say, “We may have a problem here, this is whats happening, and this is how we're going to handle
it.”); Transcript, 13 October 2023, p.47, In.21-In.24 (Mr Paul Inwood); Transcript, 8 November 2023,
p.20, In.8-In.21 (Ms Teresa Williamson).
FUJO008 1584, ‘Receipts/Payments Mismatch issue notes’.
Transcript, 14 November 2023, p.77, In.18-p.78, In.15 (Ms Deborah Stapel).
16
SUBS0000026
23.2. There was apparently no sharing of ‘common issues’ between staff performing similar
functions, such as contract managers,'°! investigators,'? and lawyers!®>.
23.3. In the course of the ordinary operation of the Horizon system, various teams within Post
Office received regular information from Fujitsu concerning BEDs, major incidents, and
issues affecting the integrity of Horizon data. Those teams included: (i) the Business
Service Management Team;' (ii) the Commercial Team; "> (iii) the IT Team; (iv) the
Operations Team; '°’ (v) the Automation Team;'®* (vi) the Network Support Team;!"° (vii)
0
the Problem Management Team;'' and (viii) the Release Management Team.'!!
Notwithstanding that source of information, there appears to have been no system or
processes in place for the dissemination of such information to the Security, Contracts, and
Criminal Law Teams. On the evidence in Phase 4, very few investigators appeared to have
recourse to, or indeed awareness of, the relevant functions of other Post Office
departments.
24. Secondly, and notwithstanding the evidence of awareness of BEDs, there was consistent
evidence from present and former Post Office employees in Phase 4 of a ‘message from the top’
that the Horizon system was robust. As to that:
‘01 Transcript, 6 December 2023, p.175, In.21-p.176, In.13 (Mr David Posnett).
102 ‘Transcript, 22 November 2023, p.29, In.22-p.30, In.1 (Mr Gerald Harbinson); Transcript, 28 November
2023, p.80, In.21-p.81, In.21 (Mr Graham Brander) (though, ¢/’p.88, In.10-In.21, wherein Mr Brander
suggests, without any specific recollection that “if there would have been any concerns, collective
concerns, no doubt they would have been discussed but I don t recall anything”); Transcript, 7 December
2023, p.14, In.23-p.16, In.23 (Mr Michael Wilcox).
103 WITN08680100, First Witness Statement of Teresa Williamson, 15 August 2023, §18; Transcript, 8
November 2023, p.14, In.17-p.15, In.6; p.82, In.4-In.20 (Ms Teresa Williamson) (“with our own team, it
just wasn't something that happened. We didn't sit down and have discussions on cases and general
issues.”).
104 The Business Service Management Team received, inter alia, the agendas and/or minutes of the Service
Review Forum, see, e.g.: FUIO0119973, FUJ00119979, FUJ00232496, FUJ00232552; FUI00233523;
FUJ00233565.
0s The Commercial Team received, inter alia, the agendas and/or minutes of the Service Review Forum,
see, e.g.: FUJ00119973, FUJ00119979, FUJ00232496.
106 The IT Team received, inter alia, Major Incident Reports and/or minutes regarding the same, see, e.g.:
POL00001074, POL0000203 1, POL00092649, POL00092219, POL00002717.
107 The Operations Team received, inter alia, Major Incident Reports, see, e.g: POL00001074,
POL00002031, POL00092649, POL00092219, POL00002717.
108 The Automation Team received, inter alia, the minutes of the Service Review Forum, see, ¢.g.:
FUJ00232496. Members of the Automation Team also attended the Contract Administration Meeting, at
which BEDs were discussed: see, e.g., FUJO0176551. Further, members of the Automation Team
received Release Notes, which detailed outstanding PinICLs, and their impact upon the system, see, e.g.:
FUJ00079422, FUJ00086385.
09 The Network Support Team received, inter alia, the minutes of the Service Review Forum, see, e.
FUJO0232496.
Ho The Problem Management Team received, inter alia, the Service Review Books, see, e.g.:
POL00093344, POL00093350, POL00093352.
mt The Release Management Team received, inter alia, Release Notes, which detailed outstanding PinICLs,
and their impact upon the system, see, e. 'UJ00079422, FUJ00086385, FUJ00083662.
17
SUBS0000026
24.1. In the course of the evidence in Phase 4, various witnesses identified a number of different
potential sources of that ‘message from the top’, including “Post Office Limited”,!'? “the
sr 114 ae or 1iS «
‘senior management”, pt
113 «6, 7 116
business”;" “the organisation”, the top," “above”,
“[flairly senior levels in the company”,''* “Senior Managers”,''? “the board”,'”° the Post
Office “Head of Security”,!?! Mr John Scott,'?? Mr Rob Wilson,'?? Mr David Smith,'** Mr
Rod Ismay,'?5 Ms Julie Thomas,'?° the Post Office “Communications Team”,'?? and
persons responsible for staff training.!28
24.2. The evidence of Mr Alan Lusher was that Post Office Contracts Advisers were given a
“statement to read out at application interviews”, prepared by “the legal team”, in order
“to assure people that the Horizon system was sound”.'*° That evidence is consistent with
the evidence of Mr Andrew Wise to the effect that Post Office gave investigators “tools to
Transcript, 18 October 2023, p.6, In.12-p.7, In.8 (Mr Alan Lusher) (“We were ~ “we” being the team of
Contracts Advisers — were repeatedly advised by Post Office Limited that there was nothing to be
concerned about with the Horizon system and the integrity was complete"); Transcript, 28 September
2023, p.52, In.2-In.20 (Ms Mandy Talbot) (“/ think it was coming from Post Office Limited”).
us Transcript, 5 December 2023, p. 58, In.5-In.9 (Mr David Posnett) (“the business were constantly saying
“Theres nothing wrong with it, there's nothing wrong with it”.”); Transcript, 11 October 2023, p.130,
In.14-In.25 (Mr John Scott) (“I think the feedback from the business and from people like Dave Smith
was that the Horizon system was robust and reliable”),
M4 Transcript, 17 October 2023, p.84, In.16-p.85, In.2) (Mr John Breeden) (“The organisation told us it was
robust.”).
us Transcript, 18 October 2023, p.8, In.18-p.9, In.5 (Mr Alan Lusher).
6 Transcript, 5 December 2023, p.41, In.8-p.42, In.17 (Mr David Posnett); Transcript, 13 October 2023,
p.156, In.12-p.157, In.14 (Mr Thomas Pegler) (“So my understanding is that came from the top, that
came from the board.”).
nr Transcript, 28 November 2023, p.97, In.24-p.99, In.5 (Mr Graham Brander).
us Transcript, 13 October 2023, p.16, In.17-p.17, In.17 (Mr Paul Inwood).
ne WITN10400100, First Witness Statement of Suzanne Winter, dated 2 January 2024 at §29.
120 Transcript, 13 October 2023, p. 156, In.20-p.157, In.4 (Mr Thomas Pegler).
of Transcript, 20 September 2023, p.112, In.4-p.113, In.16 (Mr Andrew Wise). The Head of Security at the
relevant time was Mr John Scott and, later, Mr Mark Raymond, see p.121, In.7-p.122, In.7.
12 Transcript, 28 November 2023, p.203, In.24-p.204, In.14 (Mr Graham Brander); Transcript, 13 December
2023, p.66, In.20-In.23 (Mr Christopher Knight); Transcript, 26 January 2024, p. 48, In.18-In.21 (Ms
Suzanne Winter); Transcript, 13 December 2023, p.66, In.13-p.67, In.20 (Mr Kevin Ryan).
123 Transcript, 14 November 2023, p.73, In.13-In.23 (Ms Deborah Stapel).
Ws Transcript, 11 October 2023, p.130, In.14-In.25 (Mr John Scott) (“I think the feedback from the busin
and from people like Dave Smith [from context: the Head of Change & IS] was that the Horizon sys
was robust and reliable”).
12s Transcript, 28 September 2023, p.13, In.10-p.14, In.12 (Ms Mandy Talbot).
126 WITN08350100, First Witness Statement of Paul Southin, dated 9 January 2024 at §109 (“J recall I
attended a meeting in February 2019 at which the system was described as “robust” by Julie Thomas,
who was a senior manager within POL”).
127 Transcript, 24 November 2023, p.116, In.3-p.118, In.16 (Ms Diane Matthews) (“That was the
Communications Team. It's like a media team where, I don't know, the press, et cetera, would go to them
for comment, and that's what I was told to put I dont know what the reasons were at the time but I
know now, and I probably knew when I was leaving, that there was some lengths that were being gone to
to try and protect the system, lets say”).
128 Transcript, 30 November 2023, p.208, In. 11-p.208, In.23 (Mr Jarnail Singh); Transcript, 26 January 2024,
p.9, In.12-p.10, In.4 (Ms Suzanne Winter).
129 Transcript, 18 October 2023, p.7, In.20-In.24 (Mr Alan Lusher).
18
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get round those messages [i.e. complaints regarding the integrity of Horizon] from
postmasters. So to be able to challenge them”.!*°
25. Further, it is clear this ‘message from the top’ that the Horizon system was robust was
communicated to Post Office’s external legal advisors. The Inquiry heard evidence from a
number of Post Office’s external legal advisors, who suggested that they had been provided
assurances by Post Office that the Horizon system was robust. Those witnesses included: Mr
Stephen Dilley,'*! Mr Richard Morgan KC,'*? Mr Martin Smith,'*3 and Mr Warwick Tatford.'*4
26. To the extent that some Post Office employees sought to suggest that the ‘message from the top’
originated with Fujitsw,'*> that evidence is of doubtful reliability. That is because:
26.1. The consistent evidence from Post Office employees involved in criminal investigations
and prosecutions was that they had only very limited personal or direct interactions with
Fujitsu staff.'*6 Indeed, a curious feature of the evidence on this issue is that a number of
Post Office witnesses who sought to cast blame upon Fujitsu for the ‘message from the
top’, also gave evidence that they had limited (if any) personal or direct interactions with
Fujitsu staff: see, for example, the evidence of Ms Catherine Oglesby;"7 Ms Suzanne
Winter,!** and Mr Kevin Ryan.'?
26.2. A number of the Post Office employees who suggested that such a message had come from
‘Fujitsu’ were entirely vague in their recollection as to the circumstances of such an
130
Transcript, 20 September 2023, p.119, In.20-p.121, In.6 (Mr Andrew Wise).
Transcript, 22 September 2023, p.7, In.6-In.12 (Mr Stephen Dilley).
32 Transcript, 22 September 2023, p.110, In.8-p.113, In.25 (Mr Richard Morgan KC).
88 WITN09680100, First Witness Statement of Martin John Smith, dated 21 November 2023 at $105.
14 Transcript, 15 November 2023, p. 194, In.2-In.8 (Mr Warwick Tatford).
See, for example: Transcript, 19 October 2023, p.138, In.2-In.22 (Ms Alison Bolsover); Transcript, 28
September 2023, p.13, In.5-p.14, In.12 (Ms Mandy Talbot).
136 Transcript, 18 October 2023, p.92, In.23-p.93, In.2 (Mr Alan Lusher) (“J would never refer to Fujitsu for
Information ... I didnt have the avenue through which to do that”); Transcript, 11 October 2023, p.123,
In.5-In.6 (Mr John Scott) (“The team didn t access directly to Fujitsu; they made requests for records”).
ad Transcript, 16 November 2023, p.159, In.18-p.160, In.5 (Ms Catherine Oglesby) (Ms Oglesby states that
she did not have a “direct contact to Fujitsu”). However, when asked from where she received the
message that the Horizon system was “robust and working properly”, she suggested that she was “getting
messages back from Fujitsu and from the Business Support Centre and the Horizon System Helpdesk”:
Transcript, 16 November 2023, p.140, In.7-In.16 (Ms Catherine Oglesby).
138 Transcript, 26 January 2024, p.19, In.16-p.19, In.18 (Ms Suzanne Winter) (“I never had direct contact
with Fujitsu”).
139 Transcript, 13 December 2023, p.167, In.8-In.17 (Mr Kevin Ryan) (Q. “Who from Fujitsu assured you
that Horizon was robust?” A. “I had no contact direct from Fujitsu. ”).
BL
19
27.
140
141
142
144
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assurance, or the terms on which it was given.'*° There is, moreover, no contemporaneous
documentation of which Fujitsu is aware to support those suggestions.
26.3. Indeed, where there is available evidence of the information being provided by Fujitsu
directly to those engaged in the investigation and criminal investigation of SPMs, the
suggestion that Fujitsu was providing fulsome assurances as to the integrity of the system
did not bear scrutiny. By way of illustration, although Mr Jarnail Singh sought to suggest
that relevant assurances had been provided by Mr Gareth Jenkins, there are
contemporaneous email records of Mr Singh being aware that Mr Jenkins had explained
that he was “not currently in a position to make a clear statement” that the system was
functioning properly, because “/i/t is possible for there to be problems where transactions
have been ‘lost’ in particular circumstances”.\#!
Thirdly, it is clear that a number of Post Office employees and agents involved in the
investigation and prosecution of SPMs were aware that technology made it possible for
employees of Fujitsu to remotely access, and amend, branch accounts. By way of illustration:
27.1. A 23 October 2008 email from Mr Alan Lusher to Mr Andrew Winn concerning the
investigation into SPM Mr Graham Ward noted that: “Fujitsu have the ability to impact
branch records via the message store but have extremely rigorous procedures in place to
prevent adjustments being made without prior authorisation — within POL and Fujitsu”!
Mr Lusher’s evidence to the Inquiry was that he did not consider it important to ascertain
whether such remote access may be relevant to any particular discrepancy, because he
“assumed” (it must be said, on no evidence whatsoever) that the access controls “were
being upheld”.
27.2. A September 2010 note of a meeting between Fujitsu and Post Office on the
‘Receipts/Payments Mismatch issue’ ,!** which was circulated to a number of Post Office
employees involved in the investigation and prosecution of SPMs (including, for example,
Transcript, 6 December 2023, p.94, In.5-In.21 (Mr David Posnett); Transcript, 28 September 2023, p. 11,
In.23-In.24; p.191, In.11-In.19 (Ms Mandy Talbot) (“7 would be lying if I tried to put a name to it after
this period of time. I’m very sorry.”); Transcript, 20 October 2023, p.52, In.5-In.9 (Ms Marie Cockett)
(“‘Lwould guess it would be coming from the IT guys”); Transcript, 26 January 2024, p.48, In.21-p.48,
In.23 (Ms Suzanne Winter).
FUJ00152930, Email chain dated 5 February 2010 ‘West Byfleet Issues - Seema Misra — Legally
Privileged’, p.1.
POL00117650, Email chain dated 15-23 October 2008, ‘Rivenhall’, p.1.
Transcript, 18 October 2023, p.15, In.13-p.16, In.8 (Mr Alan Lusher).
POL00028838, Receipts/Payments Mismatch issue note, September 2010.
20
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Mr Rob Wilson'#5 and Mr Alan Simpson'**) proposed a solution of “changing branch data
without informing branch”.
27.3. Ina series of email exchanges concerning the case of Ms Kim Wylie in November 2012,
Mr Gareth Jenkins explained to Ms Rachael Panter of Cartwright King that it was “possible
to remotely access the system”.'*7 Those exchanges led to the production of a witness
statement on behalf of Mr Jenkins which acknowledged the possibility of remote access.'**
28. Fourthly, and notwithstanding the foregoing, it is clear that there was a routine and systemic
failure by Post Office investigators, throughout the Inquiry’s relevant period, to pursue relevant
lines of inquiry relating to the integrity of the Horizon system, and other relevant Post Office and
third party accounting systems. Instead, a number of witnesses admitted to operating under an
assumption that SPMs were necessarily to blame for any apparent ‘shortfall’.'*° As to that:
28.1. A number of witnesses involved in the conduct of Post Office investigations and
prosecutions admitted that ‘reasonable lines of inquiry’ would have included — in each and
every case — an investigation of the Horizon system, together with other relevant Post
Office accounting systems and business processes. See, for example, the evidence of Mr
Andrew Hayward, '*° Ms Lisa Allen,'*! and Mr Gary Thomas.'*?
28.2. Notwithstanding those concessions, a number of Post Office investigators gave evidence
to the effect that they would not routinely even consider issues concerning the integrity of
data produced by the Horizon system as part of their investigations. Mr David Posnett gave
evidence that he did not consider it to be a “necessary element of the investigation” to
consider whether the Horizon system was functioning properly, because of an
“assumption” that it was so functioning.'*? Mr Gerald Harbinson gave evidence that, even
as at the date of his evidence to the Inquiry, that he was “not sure how, as an Investigator,
[he] would have checked the reliability of the system”, and that he cannot remember — in
any case — having made enquiries as to the operation, reliability, and accuracy of Horizon
M45 Transcript, 12 December 2023, p.101, In.19-p.104, In.9 (Mr Rob Wilson).
M46 POL00028838, Receipts/Payments Mismatch issue note, September 2010.
7 POL00097214, Email chain dated 27 November 2012, ‘Fujitsu expert report URGENT’, p.1.
Mas POL00002151, Witness Statement of Gareth Jenkins, dated 27 November 2012, p.3.
M49 See, for example: Transcript, 20 September 2023, p.76, In.13-In.22 (Mr Andrew Wise) (“the assumption
was that it was a mistake. So we're looking for where that mistake has been made”).
150 Transcript, 10 October 2023, p.77, In.18-p.78, In.13 (Mr Andrew Hayward).
1st Transcript, 20 December 2023, p.29, In.18-p.31, In.20 (Ms Lisa Allen).
12 Transcript, 7 December 2023, p.163, In.10-In.18 (Mr Gary Thomas).
18 Transcript, 5 December 2023, p.96, In.12-In.20 (Mr David Posnett).
21
154
158
156
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data.'*4 Mr Tony Utting stated that because investigators made the assumption that the data
produced by the Horizon system was accurate (“we worked in a world where Horizon was
100 per cent infallible”), investigators failed to investigate the accuracy and reliability of
that data (“it wasn't our role to investigate the Horizon system”).'* In the course of the
investigation of Ms Seema Misra, Mr John Longman is recorded as having noted that “it
was Post Office policy that investigating officers should never consider systems problems
as relevant to their enquiry” '°°
28.3. Further, in many cases, it would appear that obvious lines of further inquiry within Post
Office were simply not pursued. Those lines of inquiry included: (i) an analysis of calls
made by a SPM to the Horizon System Helpdesk or Network Business Support Centre
(which was sought in some, but by no means all, cases} (ii) Post Office records regarding
system developments and updates (for example, Service Review Books, Release
Management Notes, ‘Business Incident Management Service’ (“BIMS”) reports, etc.); and
(iii) Post Office departments involved with liaising with both SPMs and Fujitsu regarding
errors generating misbalances (for example, the Post Office Product & Branch Accounting
Team, the Post Office IT Team, and the Post Office Business Service Management Team).
28.4. The Inquiry may also conclude that there was a persistent and serious failure by the Post
Office employees purporting to apply the Full Code Test under the Code for Crown
Prosecutors — which undoubtedly does require consideration of any outstanding reasonable
lines of inquiry!’ — to provide adequate advice regarding reasonable lines of inquiry. For
the period when Mr Tony Utting was the designated prosecution authority, his evidence
was that he did not consider it his role to “raise questions about obtaining additional
evidence”, because that was “very much a matter between the lawyer and the investigator
and counsel” .'°8
28.5. Indeed, in some cases, the evidence goes further — and suggests that Post Office employees
took deliberate and considered decisions not to obtain further information from Fujitsu
relating to the integrity of the Horizon system, or internally in relation to other relevant
Post Office and third party accounting systems. That is, this was not a problem of mere
negligence or omission. Rather, in some cases, this was a conscious decision to limit the
Transcript, 22 November 2023, p.21, In.15-p.23, In.10 (Mr Gerald Harbinson).
Transcript, 17 November 2023, p. 57, In.4-p.58, In.5 and p.68, In.23-p.69, In.21 (Mr Tony Utting).
POL00058503, Email chain dated 28-29 November 2009, ‘Misra’, attaching Further Request for
Disclosure (nb, p.3, $9).
Transcript, 18 December 2023, p.174, In. 120-p.175, In. 15 (Mr Duncan Atkinson KC).
Transcript, 17 November 2023, p.115, In.5-In,12 (Mr Tony Utting).
22
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available evidence. For example: In June 2012, a possible issue with a Wincor ATM, which
may have caused loss to a SPM was discussed in an email chain between Mr David Pardoe,
Mr Hugh Flemington, Ms Susan Crichton (General Counsel) and Ms Alwen Lyons
(Company Secretary). Ms Lyons commented: “This isnt the only ATM [issue] though so
we need to be careful we dont make that the next computer system they want a forensic
review of!!”'*? A further example of this attitude within Post Office was the decision, in a
number of cases, not to request that Fujitsu carry out a full analysis of ARQ records
(discussed further in Topic 6, below).
29. Fifthly, the Inquiry may wish to consider the extent to which the evidence in Phase 4 revealed
organisational and/or cultural problems within the Post Office teams responsible for the
investigation and prosecution of SPMs; and the extent to which such problems may have
contributed to the issues considered by the Inquiry. Fujitsu understands that issues of
organisational culture will be addressed in later phases, including with the assistance of relevant
expert evidence. Insofar as those issues were raised in Phase 4, it may be noted that:
29.1. The Inquiry heard evidence that, at times, due to reduction in staffing levels within the Post
Office Investigations Division, the team was “swamped” with the number of active
cases.'©° Mr David Posnett expressed the view that, at times, teams had “an overstretched
capacity to investigate”.'*!
29.2. Further, the Inquiry will recall that Mr Andrew Hayward gave evidence as to a “testing,
toxic environment” within the security team during the latter part of his career,’ and that
Mr David Posnett (apparently referring to the same period) suggested that there was a
163
“culture of fear” within the team.'® The Inquiry will wish to consider the extent to which
such an environment affected the approach to prosecutions.
Topic 4: Failings in disclosure by Post Office
30. The duty of the prosecution in criminal proceedings to give proper disclosure to the defence of
material which may undermine the prosecution case, or which may assist the case of the defence,
is of paramount importance to the fairness of the proceedings as a whole. As Lord Bingham
observed in R v H [2004] 2 AC 134 at §14, “/bJitter experience has shown that miscarriages of
‘9 POL00180773, Email chain dated 20 June 2012, ‘Wincor ATM Log Fault - Shoosmiths’,p.1.
‘60 ‘Transcript, 5 December 2023, p.47, In. 12-p.48, In.21 (Mr David Posnett); Transcript, 17 November 2023,
p.7, In.6-p.8, In.8; p.10, In.3-p.12, In.17 (Mr Tony Utting).
‘61 ‘Transcript, 5 December 2023, p.49, In.6-In.15 (Mr David Posnett).
‘62 ‘Transcript, 10 October 2023, p.118, In.20-p.120, In.13 (Mr Andrew Hayward).
‘63 Transcript, December 2023, p.177, In.1-In.21 (Mr David Posnett).
23
31.
32.
33.
168
165
16
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justice may occur where such material is withheld from disclosure”. The appalling miscarriage
of justice at the centre of this Inquiry is a vivid illustration of this.
In that connection, Fujitsu makes four submissions in relation to disclosure at this stage:
First, and most fundamentally, the evidence in Phase 4 suggests that Post Office failed to disclose
information within its own knowledge, as to the existence of BEDs in the Horizon system and in
other relevant Post Office and third party systems, and as to the capacity of those BEDs to impact
upon branch accounts. The state of Post Office’s knowledge as to the existence of BEDs is
addressed in Topic 3, above. Further, Mr Atkinson acknowledged in his evidence that the concept
of ‘corporate knowledge’ operates in respect of material which may meet the test for disclosure
and is “within the knowledge of any arm of the prosecution authority”.'* That is, Post Office was
under a duty to disclose information regarding BEDs in the Horizon system, regardless of which
department within Post Office held that relevant knowledge. The evidence received by the
Inquiry in Phase 3 demonstrated clearly that extensive information concerning the existence of
identified BEDs, and their potential impacts upon branch accounts, was widely known within the
Post Office (as noted above, particularly in internal IT teams, and teams involved in liaising with
SPMs and Fujitsu regarding errors affecting branch accounts, such as Product & Branch
Accounting).'® That information provided a rich store of material which could, and should, have
been disclosed in connection with criminal prosecutions.
Fujitsu accepts, as it has done throughout this Inquiry, that there were a number of BEDs in the
Horizon system, which BEDs had the ability to (and did in fact) impact upon branch accounts.'%
In addition to the possibility of errors in Horizon to generate apparent ‘shortfalls’ in branch
accounts, the evidence in Phase 4 of the Inquiry identified a number of additional Post Office
and third party systems and business processes which also introduced the possibility of shortfalls
and/or of data integrity issues.'®’ Those additional systems and business processes included: (i)
Transcript, 6 October 2023, p.89, In.8-In.24 (Mr Duncan Atkinson KC).
SUBS0000025, Phase Three Closing Submissions on Behalf of Fujitsu Services Limited at §§4-8.
See, for example: SUBS0000002, Opening Statement on Behalf of Fujitsu Services Limited, 4 October
2022 at §21; SUBS0000020, Phase Two Closing Submissions on Behalf of Fujitsu Services Limited at
§17; SUBS0000025, Phase Three Closing Submissions on Behalf of Fujitsu Services Limited at §3.
Some witnesses gave evidence generally about the availability of information on other systems within
Post Office. For example: Transcript, 10 October 2023, p.77, In.18-p.78, In.13 (Mr Andrew Hayward)
(Mr Hayward suggested that Post Office investigators would have regard to data held on “Horizon and/or
other systems within the Post Office because there were other systems that held data. I'm not au fait, at
this current moment in time, with what those systems were but it would be computer systems held by Post
Office.”).
24
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Credence;'® (ii) POLFS;'® (iii) ONCH data;'”° (iv) systems and procedures associated with
Camelot / lottery / scratchcards;'7! (v) systems and procedures associated with ATMs;!” (vi)
Error Notices / Transaction Corrections;!” and (vii) other third party software.'™ To be clear:
Fujitsu unreservedly accepts that, in a number of cases considered by the Inquiry, information
derived from the Horizon system was instrumental to the wrongful prosecutions and civil
proceedings pursued against SPMs. Nonetheless, the Inquiry may well be of the view that a full
consideration of the Phase 4 evidence leads inevitably to the conclusion that: (i) there were
numerous potential sources of BEDs impacting upon branch accounts (of course including, but
not limited to, BEDs in the Horizon system); and (ii) it would appear that Post Office failed to
give disclosure to each and every SPM (properly, or at all) of known errors in Post Office’s own
systems and business processes which introduced the possibility of shortfalls and/or data integrity
issues, quite apart from the separate failure to disclose BEDs in the Horizon system. That is an
important part of the picture which emerged on the Phase 4 evidence.
34. Secondly, it is also clear that Post Office failed (properly or, in some cases, at all) to obtain
material held by relevant third parties — including Fujitsu —- which may have met the test for
disclosure. As Mr Atkinson noted, Post Office was under a duty to consider whether third parties,
including Fujitsu were “in possession or likely to be in possession of disclosable material”, and
to request that information.'’> The evidence supports the conclusion that Post Office failed in that
duty:
tos Transcript, 20 September 2023, p. 138, In.17-In.20 (Mr Andrew Wise). The evidence of Ms Helen Rose
was that Credence was “relied [upon] quite heavily” by Post Office: Transcript, 19 September 2023,
p.20, In.17-p.21, In.13 (Ms Helen Rose).
169 Transcript, 26 September 2023, p.18, In19-p.20, In. 14 (Mrs Anne Chambers).
1 POL00046706, Investigation Report for Lynette Hutchings, prepared by Graham Brander, dated 5 May
2011.
m POL00136717, Email dated 10 June 2013, ‘SR021 and 022°, p.2; Transcript 13 December 2023, p.89,
In.12-p.90, In. 16 (Mr Christopher Knight); Transcript 18 October 2023, p.61, In.11—p.62, In.7 (Mr Alan
Lusher).
ed POL00044222, ‘Area Intervention Manager Visit Log’ in relation to the Fazakerley Branch, dated 6
September 2005, p.1; POL00029677, Draft Report by Detica NetReveal, ‘Fraud and Non-conformance
in the Post Office; Challenges and Recommendations’, dated 1 October 2013, §3.3.1 (pp.11-12);
POL00113320, Post Office presentation ‘Possible Postmaster Detriment: Overview for understanding’,
working draft dated 8 October 2021, p.3.
POL00108436, Initial Complaint Review and Mediation Scheme, Post Office Preliminary Investigation
Report (Mr Chirag Patel), pp.1-2; Transcript 19 October 2023, p.30, In.20-p.31, In.23 (Ms Alison
Bolsover).
im POL00165450, Email chain dated 4 June 2014, ‘GY:15665193— Notice #4 — P2 - SERVICE/SYSTEMS
DOWN OR OFFLINE ~ Issues with transfer acknowledgment in National Lottery system — this is
causing duplication tickets’, pp.1-2; Transcript 29 November 2023, p.112, In.9-In.23 (Mr David Pardoe).
"7s Transcript, 6 October 2023, p.94, In.14-20 (Mr Duncan Atkinson KC).
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34.1. As noted above, in respect of a number of the case studies examined by the Inquiry in
Phase 4: (i) no ARQ data was obtained by Post Office from Fujitsu;!” and, in many cases
(ii) there is no evidence of direct contact between Post Office and Fujitsu whatsoever!”
34.2. Further, the evidence of Mr Atkinson was that Mr Atkinson did not identify any occasion
on which Post Office: (i) made clear to Fujitsu the nature and scope of Post Office’s
178
disclosure obligations in criminal proceedings;'”* (ii) set out to Fujitsu the categories of
material held by Fujitsu which were potentially relevant for disclosure in connection with
criminal proceedings;!” and (iii) sought to put Fujitsu on notice as to the need to retain
relevant documentation, on the basis that it may have been required for disclosure in
criminal proceedings.'*” To that end, Mr Atkinson concluded in his Volume 2 report that
“there was no real discussion that [he had] seen ... of the relationship between the Post
Office and Fujitsu, in relation to obtaining and disclosure of material held by Fujitsu that
was potentially relevant to the Post Offices prosecutions”.'*! The Inquiry is respectfully
invited to accept Mr Atkinson’s evidence in that regard which, in Fujitsu’s submission,
accurately reflects the available contemporaneous documentary evidence.
35. Thirdly, it is a fundamental principle of criminal disclosure that, when the prosecutor considers
the scope of the defence case for the purpose of considering the disclosure test, the defence case
“should not be restrictively analysed”: R v H [2004] 2 AC 134 at §35. As Mr Atkinson explained
in his evidence, that is a fundamental principle of fairness, but it also has important practical
consequences: “not least because the defence may not identify as something that will assist them
7.482
something that they dont know anything abou It would be open to the Inquiry to conclude,
on the balance of the evidence heard in Phase 4, that Post Office routinely failed to comply with
176 ‘This appears to be true in the cases of: Ms Lisa Brennan, Mr David Yates, Mr David Blakey, Mr Tahir
Mahmood, Mr Carl Page, Ms Suzanne Palmer, Ms Joan Bailey, and Ms Allison Henderson. See:
Transcript, 18 December 2023, p.96, In.1-In.8; p.96, In.14-p.97, In. 16; p.97, In.17-p.99, In.2; p.102, In.4-
p.103, In.7; p.106, In.3-In.11; p.106, In.12-In.25; p.118, In.7-p.119, In.7; p.119, In.14-p.120, In.3 (Mr
Duncan Atkinson KC).
This appears to be true in the cases of: Ms Lisa Brennan, Mr David Yates, Mr David Blakey, Mr Tahir
Mahmood, Ms Suzanne Palmer, Ms Joan Bailey, and Ms Allison Henderson. See: Transcript, 18
December 2023, p.96, In.1-In.8; p.96, In.14-p.97, In.16; p.97, In.17-p.99, In.2; p.102, In.4-p.103, In.7;
p-106, In.12-In.25; p.118, In.7-p.119, In.7; p.119, In.14-p.120, In.3 (Mr Duncan Atkinson KC). Mr
Atkinson further stated that the position was “not absolutely clear” in relation to the case of Mr Peter
Holmes because, while “a degree of Horizon material” was obtained, the source of that material was
unclear, and there was no evidence of “the results of any such contact [with Fujitsu], or, indeed, any
document that set out such contact”: Transcript, 18 December 2023, p.110, In.8-p.111, In.2 (Mr Duncan
Atkinson KC).
vs Transcript, 18 December 2023, p.172, In.7-11 (Mr Duncan Atkinson KC).
7
19 ‘Transcript, 18 December 2023, p.172, In.16-20 (Mr Duncan Atkinson KC).
‘80 Transcript, 18 December 2023, p.172, In.20-p.173, In.7 (Mr Duncan Atkinson KC).
vt EXPG0000004, Expert Report of Duncan Atkinson KC, Volume 2, $666.
'82 ‘Transcript, 6 October 2023, p.87, In. 16-p.89, In.5 (Mr Duncan Atkinson KC).
26
36.
184
186
187
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this important obligation, and did in fact adopt an overly restrictive analysis of the defence case
for the purposes of the disclosure test:
35.1. Often, the burden of identifying particular BEDs, or potential evidence of BEDs, was
placed upon the SPM. That is, in many cases Post Office adopted a posture whereby no
disclosure of BEDs would be given, unless a SPM could identify some basis for suggesting
that their particular branch accounts had been affected by a BED.'** Of course, on the
information available to SPMs, to do so would have been difficult, if not impossible.
Further, as noted above, the evidence supports the conclusion that, even where issues were
raised by SPMs in the course of a criminal investigation, including on the basis of available
records, those issues were not adequately investigated.
35.2. As Mr Atkinson identified in his Volume 2 report, this trend continued late into the
prosecutions pursued by Post Office. Thus, in the case of Mr Khayyam Ishaq, Ms Rachel
Panter of Cartwright King (in November 2012) adopted the position that only a generic
statement of Mr Jenkins should be served “so that the issue of Horizon is addressed, That
will then place the onus on the defence to specify what if anything is wrong with the
Horizon system”.'**
Fourthly, it is also clear that there were serious failures in the cross-disclosure of issues
concerning BEDs in the Horizon system. That is, in circumstances in which Post Office, in the
context of one of its criminal cases, became aware of issues affecting the integrity of the data
produced by the Horizon system, Post Office routinely failed to disclose those issues in each and
every other criminal prosecution pursued. That is a further clear breach of Post Office’s disclosure
obligations.'** As to that:
36.1. Mr Atkinson concluded that “there is no evidence of routine cross-disclosure where
Horizon evidence was relied on”.'*° That is so, despite there being evidence of “discussions
of the need to disclose issues raised in one case in others where similar issues had
arisen”."*” Mr Atkinson confirmed that, despite those “discussions” they did not, in fact,
See, for example: Transcript, 8 November 2023, p.67, In.3-p.68, In.3 (Ms Teresa Williamson); Transcript,
28 September 2023, p.102, In.8-p.103, In.2 (Ms Mandy Talbot); Transcript, 11 January 2024, p.103, In.4-
p.106, In.10 (Mr Stephen Bradshaw).
POL00059404, Email chain dated 16 November 2012, ‘POL cases raising Horizon’, p.2; EXPG0000004,
Expert Report of Duncan Atkinson KC, Volume 2, §§662-663.
See, e.g., Transcript, 19 December 2023, p.5, In.3-p.6, In.8 (Mr Duncan Atkinson KC).
EXPG0000004, Expert Report of Duncan Atkinson KC, Volume 2, $670.
EXPG0000004, Expert Report of Duncan Atkinson KC, Volume 2, §19.
27
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appear to result in cross-disclosure being given — even in cases (like that of Mr Julian
Wilson) where issues of cross-disclosure were expressly raised. '**
36.2. Indeed, one of the outcomes of the February/March 2010 Post Office meetings to address
‘Horizon disputed cases’ !*?
was that there ought to be clarity as to the number of civil and
criminal cases raising issues concerning the integrity of the data produced by the Horizon
system. Such a suggestion, if implemented, would plainly have facilitated cross-disclosure
of those issues. However, the evidence in Phase 4 appears to suggest that the suggestion
was never formally implemented.
36.3. In fact, Post Office policies sought to /imit the extent of cross-disclosure of issues. The
Post Office policy ‘Guide to the Preparation and Layout of Investigation Red Label Case
Files: Offender reports & Discipline Reports’ positively suggested that “failures in
security, supervision, procedures and product integrity” which “may affect the successful
likelihood of any criminal action and/or cause significant damage to the business” should
“be confined, solely, to the confidential offender report”.!°° That is — not disclosed to SPMs
who were the subject of criminal investigation. Mr Andrew Hayward and Ms Helen Rose
confirmed this to be the effect of the relevant policy.'?! Ms Diane Matthews confirmed that
she understood that information which could “bring the company into question”, including
“an issue about Horizon” should not be disclosed.'” The approach set out in this policy is
impossible to reconcile with the duties of a criminal investigator or prosecutor. However,
it does reflect an acute concern regarding information relating to issues with the integrity
of Horizon entering the public domain. '%?
Topic 5: Failings in relation to ARQ data
37. The Inquiry has heard a considerable body of evidence concerning the provision to Post Office,
by Fujitsu, of ARQ data; and as to the reliability of the ARQ data produced. As to that evidence:
188 Transcript, 19 December 2023, p.3, In.3-p.7, In.9 (Mr Duncan Atkinson KC).
189 POL00106867, Email chain dated 25 February 2010 to 3 March 2010, ‘Horizon disputed cases’.
Transcript, 11 October 2023, p.142, In.15-In.19 (Mr John Scott) (Q. “does it follow that, by ... February
2010, there was no central repository of issues that subpostmasters had raised with the integrity of
Horizon data?” A. “Not that I can recall.").
190 POL00038452, Guide to the Preparation and Layout of Investigation Red Label Case Files: Offender
reports & Discipline Reports, undated, §2.15.
Transcript, 10 October 2023, p.97, In.16-p.99, In.4 (Mr Andrew Hayward); Transcript, 19 September
2023, p. 29, In.16-p.30, In.18 (Ms Helen Rose).
192 Transcript, 24 November 2023, p.42, In.2-p.43, In.19 (Ms Diane Matthews).
19s See, further: POL00053954, Letter from Ms Juliet McFarlane to Mr Warwick Tatford, 2 February 2010
(“Lam a little concerned at Counsel s suggestion that Royal Mail disclose Hosi s Expert Report... 1am
raising this as at the moment a number of Defendants are taking this line simply because they have seen
the article in the computer press rather than because Horizon has thrown up a problem”).
28
38.
194
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First, the evidence makes clear that, in a substantial number of the case studies examined by the
Inquiry in Phase 4, ARQ data was never obtained by Post Office at any stage of the investigation
or prosecution.'™ That conclusion is consistent with the findings of the Court of Appeal in, inter
alia, Hamilton & Others v Post Office Limited [2021] EWCA Crim 577. As to that:
38.1. A concerning number of Post Office employees involved in the investigation and
prosecution of SPMs were not even aware of the possibility of obtaining ARQ data from
Fujitsu.'°> In an email exchange with Mr Gareth Jenkins of Fujitsu in February 2013, Ms
Helen Rose expressed the concern that Post Office staff may not know “what extra reports
to ask for” by way of ARQ requests, such that “in some circumstances we would not be
giving a true picture”.'°°
38.2. In some cases, Post Office witnesses suggested that ARQ data would not have been
requested, unless there was some case-specific reason for doing so ~ i.e., that the SPM had
challenged the integrity of the Horizon data.'%”
38.3. In some cases, there were considerable delays in obtaining ARQ data.'** The Inquiry may
well consider the timing of requests for ARQ data to be a significant issue. The evidence
supports the conclusion that requests for ARQ data were rarely, if ever, made until a ‘not
guilty’ plea was indicated, and the matter committed for trial in the Crown Court.!%°
However, as Mr Atkinson confirmed in his evidence, it is difficult to see how any
prosecutor could comply with the requirement, as part of the application of the Full Code
Test in the Code for Crown Prosecutors, to consider whether all reasonable lines of inquiry
have been completed, if they have not been provided with a schedule of unused material,
This appears to be true in the cases of: Ms Lisa Brennan, Mr David Yates, Mr David Blakey, Mr Tahir
Mahmood, Mr Carl Page, Ms Suzanne Palmer, Ms Joan Bailey, and Ms Allison Henderson. See:
Transcript, 18 December 2023, p.96, In. 1-In.8; p.96, In. 14-p.97, In.16; p.97, In.17-p.99, In.2; p.102, In.4-
p.103, In.7; p.106, In.3-In.11; p.106, In.12-In.25; p.118, In.7-p.119, In.7; p.119, In.14-p.120, In.3 (Mr
Duncan Atkinson KC).
Transcript, 18 October 2023, p.29, In.5-23 (Mr Alan Lusher) (“As far as I can recall, I havent heard of
ARQ data before”); Transcript, 22 November 2023, p.27, In.10-p.28, In.17 (Mr Gerald Harbinson);
Transcript, 29 September 2023, p.37, In.15-p.38, In.22 (Mr John Jones) (Q. “In 2004 [you] were unaware
of what Fujitsu generated Horizon reports were available”. A. “That is correct”); Transcript, 8
November 2023, p.44, In.3-In.19 (Ms Teresa Williamson).
POL0009748 1, Email chain dated 7-13 February 2013, ‘Lepton logs’, p.3.
Transcript, 24 November 2023, p.29, In.14-In.22 (Ms Diane Matthews).
Transcript, 30 November 2023, p.213, In.8-p.220, In.22 (Mr Jarnail Singh).
Transcript, 5 December 2023, p.86, In.11-p.87, In.14 (Mr David Posnett).
29
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ora copy of the material itself.? The position must be a fortiori when the relevant material
has not even been requested to be obtained by the investigator”!
38.4. In some cases, the suggestion that relevant ARQ data was required to be obtained and
202
analysed came from Fujitsu employees.”” By way of illustration, in the proceedings
against Ms Seema Misra, it is clear that the suggestion that Post Office should seek
“transaction data for West Byfleet for the period and transactions in question” was made
by Mr Jenkins and Mr David Jones (Fujitsu Head of Legal).°> Mr Jenkins’ comments as
to the need to obtain ARQ data were directly conveyed to Mr Jarnail Singh of Post Office:
“[t]he simple answer is that without retrieving the logs everybody is speculating and as
discussed this morning nobody has bothered to ask us for any logs. At this stage it is not
at all clear what transactions are thought to be missing at what time or even in what time
period” .** Following those exchanges on 5 February 2010, it would appear that the ARQ
data was only provided to the defence a month later on 5 March 2010, and then only for
data in the period 1 December 2006 to 31 December 2007.°5
39. Secondly, the Inquiry explored with a number of Post Office witnesses the impact (if any) of
contractual limits upon the provision of ARQ data.” In relation to that evidence, Fujitsu submits
that:
39.1. Ultimately, the evidence in Phase 4 does not enable the Inquiry safely to conclude that the
contractual limits upon the provision of ARQ data did, in fact, cause difficulties in the
investigation of any particular case. For the most part, that evidence was expressed at a
200 Transcript, 18 December 2023, p.175, In.5-In.15 (Mr Duncan Atkinson KC).
201 A point made by Mr Atkinson as well: Transcript, 18 December 2023, p.182, In.8-p.183, In.2 (Mr Duncan
Atkinson KC) (“/Investigators] would not include reference to ARQ data on the unused schedule because
they hadn't asked for the ARQ data, and so they didn't have the ARQ data, as unused material, but,
clearly, they should have followed that reasonable line of inquiry, therefore they should have the data,
therefore they should have included it on the unused schedule”).
For example, see: Transcript, 15 December 2023, p.95, In.8-p.96, In.8 (Mr Andrew Bole).
208 FUJ00122713, Email chain dated 5 February 2010, ‘West Byfleet Issues - Seema Misra — Legally
Privileged’.
204 FUJ00122735, Email chain dated 5 February 2010, ‘Regina v Seema Misra Guildford Crown Court Trial
— 15" March 2010", p.1.
208 POL00054310, Letter from Robert Wilson to Coomber Rich, 5 March 2010.
206 See, for example: Transcript, 19 October 2023, p.100, In.25-p.101, In.16 (Ms Alison Bolsover);
Transcript, 5 December 2023, p.77, In.3-In.4, p.101, In.3-In.9 (Mr David Posnett) (Q. “Was some data
not sought because of cost?” A. “In part, I would say yes.””); Transcript, 24 November 2023, p.23, In.15-
p.24, In.11 (Ms Diane Matthews) (“/t didn t have an impact on the number of occasions I requested it; it
may have had an impact on the number of disks that I received”); Transcript, 28 November 2023, p.69,
In.7-p.71, In.4 (Mr Graham Brander) (“it restricted the amount that I would have requested”); Transcript,
28 September 2023, p.170, In.14-In.22 (Ms Mandy Talbot); Transcript, 7 December 2023, p.54, In.14-
p.55, In.13 (Mr Michael Wilcox); Transcript, 17 November 2023, p.158, In.25-p.159, In.9 (Mr Tony
Utting).
30
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general level. Further, and in any event, the evidence cut both ways: while some witnesses
expressed the view that the contractual limits did impact upon the lines of inquiry
207
pursued;*”’ others suggested that it made no, or minimal, difference to their conduct of
investigations as opposed to affecting timing of a request.°*
39.2. Given the number of witnesses who suggested that the contractual limits upon the
provision of ARQ data may have impacted upon the conduct of investigations, it is a
curious feature of the evidence that there is no contemporaneous evidence of complaints
or concerns being raised with Fujitsu in that regard.2”
39.3. In any event, and as noted above, the limitations upon the provision of ARQ data were the
product of contractual negotiations between Post Office and Fujitsu. If, and to the extent
that, those limits impacted adversely upon the conduct of investigations by Post Office, it
was of course open to Post Office to seek to renegotiate those limits. Post Office did so on
only very few occasions.?'° Further, to the extent that Post Office was ever truly in the
position where it was unwilling or unable to obtain ARQ data, which data was necessary
for a prosecution to proceed fairly in accordance with its disclosure obligations, Mr
Atkinson KC’s evidence was that Pose Office should have ceased that prosecution.?!!
40. Thirdly, the evidence further establishes that, even in those case studies where ARQ data was
obtained by Post Office, that which was obtained was insufficient to enable Post Office to
interrogate (properly, or at all) whether the alleged ‘shortfall’ at issue was, or may have been, the
result of BEDs in the Horizon system, and other relevant Post Office accounting systems and
business processes for Post Office prosecutions. That is so, because:
See, for example: Transcript, 5 December 2023, p.77, In.3-In.4, p.101, In.3-In.9 (Mr David Posnett) (Q.
“Was some data not sought because of cost?” A. “In part, 1 would say yes.”).
208 See, for example: Transcript, 7 December 2023, p.54, In.14-p.55, In.13 (Mr Michael Wilcox) (The
contractual limit “wasn ta major problem but it just slowed you down a bit”).
209 Fujitsu has not, at the time of these closing submissions, identified any evidence of Post Office having
raised a complaint with Fujitsu regarding the limits upon the provision of ARQ data (and only very
limited evidence of such complaints being raised internally within Post Office).
210 For example, there is evidence of Fujitsu agreeing to increase the limits upon the provision of ARQ data
in June/July 2004: POL00114566, Letter from Mr Colin Lenton-Smith to Mr Keith Baines dated 9 June
2004, p.55; POL00114566, Letter from Mr Keith Baines to Mr Colin Lenton-Smith dated 26 July 2014,
p.28
a Transcript 6 October 2023, In.2 p.95-p.96, In.2 (Mr Duncan Atkinson KC).
31
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40.1. Post Office Investigations Department lacked the relevant technical expertise to scrutinise
ARQ data and other relevant system information.”!?
40.2. Post Office Investigations Department systemically failed to engage the support of those
technical experts within Post Office who may have had the technical expertise to scrutinise
ARQ data.?!3
40.3. Indeed, the evidence of Mr David Posnett (who, for some time, was responsible for making
ARQ requests of Fujitsu) was that he did not recall “reading many of the [ARQ] witness
statements anyway” — they were simply “transferred on to the Investigator” (without
more).?!* Much of Mr Posnett’s evidence concerning the content of ARQ requests appeared
to be based on assumption, rather than (as one might have expected, given his professional
role) actual understanding as to the work performed by Fujitsu in response to such a
request.?!5
40.4. In general terms, the nature of the information sought in an ARQ request was inadequate
to enable Post Office to interrogate (properly, or at all) whether the alleged ‘shortfall’ at
issue was, or may have been, the result of BEDs in the Horizon system, and other relevant
Post Office accounting systems and business processes for Post Office prosecutions. That
is, of itself, the ARQ data would not have been sufficient for any person (with the requisite
technical competence) to identify relevant integrity issues. Indeed, given that Horizon was
one (albeit, particularly significant) component of the wider Post Office IT estate (which
included various other Post Office systems, together with third party systems necessary to
execute particular Post Office functions such as lottery and banking), as a matter of logic
Transcript, 6 December 2023, p.7, In.20-In.24 (Mr David Posnett) (“/ don ¢ recall what analysis was done
[by Fujitsu in relation to ARQ data] and I probably wouldn t have understood it anyway ”); Transcript,
20 September 2023, p.20, In.21-p.21, In.14 (Ms Davlyn Cumberland), see also p.5, In.6-In.9 (“’'m not —
no expert with computing. I’m not — in fact, I'm not good with technology at all”); Transcript, 24
November 2023, p.72, In.11-p.73, In.4 (Ms Diane Matthews) (Q. “What qualifications did you have to
analyse Horizon ARQ data?” A. “I had no qualifications ch to do it.” [...] Q. “Did you have any
training?”. A. “I can't remember any specific training, no.””); Transcript, 7 November 2023, p.44, In.23-
p.45, In.1; see also p.45, In.21-p.46, In.6; p.66, In.19-p.67, In.11 (Ms Elaine Cottam) (“/ wouldnt
understand the call logs”); Transcript, 13 December 2023, p.132, In.10-p.133, In.25 (Mr Kevin Ryan)
(Q. “Do you believe you had the necessary expertise to interpret the ARO data?” A. “Probably not, if
I'm being honest ... I'd never had any training in going through ARQ data at all.”). A striking feature of
the evidence of Ms Diane Matthews was that she did in fact purport to provide an analysis of ARQ data,
despite having no expertise or qualifications to do so: Transcript, 24 November 2023, p.72, In.11-p.73,
In.4 (Ms Diane Matthews).
Transcript, 26 January 2024, p.57, In.19-p.58, In.22 (Ms Suzanne Winter); Transcript, 13 December 2023,
p.132, In.22-p.133, In. 25 (Mr Kevin Ryan); Transcript, 7 December 2023, p.173, In.10-In.18 (Mr Gary
Thomas).
a4 Transcript, 6 December 2023, p.6, In.22-p.7, In.11 (Mr David Posnett).
21s Transcript, 5 December 2023, p.90, In.2-In.24 (Mr David Posnett).
32
41.
42.
43.
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it is inconceivable that ARQ data alone was ever likely to have been sufficient to properly
investigate an apparent shortfall. The inherent limitations of ARQ data were recognised by
at least some of those engaged in criminal investigations on behalf of Post Office."
Fujitsu has also made clear to the Inquiry that it cannot confirm that ARQ data was on its own
sufficient to enable any SPM against whom civil proceedings or a criminal prosecution was
pursued to understand whether the Horizon system was operating correctly at their relevant
branch.7!”
Fourthly, Fujitsu has identified a number of errors, defects, and inadequacies in the system for
the production of ARQ data which cast fundamental doubt upon the reliability of that data. Fujitsu
acknowledges that those problems appear to have beset the system for the production of ARQ
data since its inception. Fujitsu’s present understanding of the extent and impact of those issues
is set out in detail in its Third Corporate Statement?'* and the witness statements of Mr Gerald
Barnes?!’ and Mr John Simpkins.” That information is not repeated in these submissions.
Fujitsu readily accepts that Post Office ought to have been told about those errors, defects, and
inadequacies in the system for the production of ARQ data. The evidence available to the Inquiry
does support the conclusion that Post Office were informed about those issues which Fujitsu has
identified to date. Certainly, it is clear beyond argument that Post Office were aware of sufficient
information to raise substantial doubts as to the reliability of ARQ data. By way of illustration:
43.1. In May 2001, it was identified that there was data loss in the audit trail for a six-day period
in August 2000, caused by a coincidental ‘Digital Linear Tape’ failure at both datacentres
which contained the main Horizon servers.”*! That ‘broken audit trail’ issue was identified
in the course of the completion of an ARQ request.” That issue was promptly notified to
Transcript, 7 December 2023, p.52, In.15-p.53, In.15; p.78, In.20-p.79, In.9 (Mr Michael Wilcox).
WITN06650300, Third Corporate Statement of Fujitsu Services Limited, dated 14 September 2023, §19.
WITN06650300, Third Corporate Statement of Fujitsu Services Limited, dated 14 September 2023,
§§26-161. See also (although not related to a BED in the production of ARQ data, but in relation to
remote access): Transcript, 26 September 2023, p.67, In.15-p.68, In.19 (Mrs Anne Chambers).
WITN09870100, First Witness Statement of Gerald Barnes, dated 30 August 2023; WITN09870200,
Second Witness Statement of Gerald Barnes, dated 19 December 2023.
WITN04110200, Second Witness Statement of John Graeme Simpkins, dated 30 August 2023;
WITN04110300, Third Witness Statement of John Graeme Simpkins, dated 19 December 2023.
FUJO0172093, PinICL PC00663 18, opened 24 May 2001.
FUJ00176297, Letter from Mr Colin Lenton-Smith to Mr Keith Baines, dated 15 August 2002.
33
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Post Office in correspondence dated 9 May 2001,? 23 May 2001,?*4 and in a ‘Contract
Administration Meeting’ on 23 May 2001.75
43.2. On 21 June 2010, Ms Penny Thomas of Fujitsu identified duplicate transaction records in
the course of producing an ARQ return.” On 23 June 2010, the source of that problem
was identified to be a difference in the treatment of duplicate transactions between Legacy
Horizon and HNG-X.22" A report prepared by Ms Thomas noted various actions arising
from the identification of the error, including communication with Post Office regarding
the scale of the problem, investigation of related problems, and investigation of cases
which had progressed to prosecution in which duplicate records may have been included
within an ARQ return.’ Fujitsu acknowledges that, in a 24 June 2010 email, Mr Guy
Wilkerson (Fujitsu Commercial Director) advised Fujitsu staff to “hold off” reporting the
issue to Post Office “until [they] get a chance to speak to the HNG-X team tomorrow”?
Mr Jenkins acknowledged in an email that, given the potential impact of this issue upon
pending prosecutions, there was a need for Fujitsu to “tel! POL about it asap”.° However,
and in any event, on 30 June 2010 (that is, six days after Mr Wilkerson’s email), Ms
Thomas contacted Ms Sue Lowther of the Post Office concerning the detail of the issue.?*!
Ultimately, on 7 July 2010, the ‘standard’ Fujitsu witness statement was updated with
information concerning the duplicate transactions issue.”
Topic 6: Failings in relation to the instruction of expert witnesses
44. A matter of particular significance to the Inquiry’s Terms of Reference is the conduct of Post
Office in relation to the instruction of ‘expert’ witnesses in civil and criminal proceedings. For
the most part, that relates to the reliance by Post Office upon ‘expert’ witnesses who were, at the
relevant time, employees of Fujitsu (including Mr Gareth Jenkins, and Mrs Anne Chambers).
Fujitsu is conscious that, in addressing this issue, the Inquiry is yet to hear evidence from Mr
m2 FUJ00172093, PinICL PC00663 18, opened 24 May 2001.
24 FUJ00171959, Letter from Mr Jan Holmes to Ms Sue Kinghorn, dated 23 May 2001.
2s FUJO0176285, Minutes of the Contract Administration Meeting, dated 23 May 2001.
226 FUJ00097058, Report by Ms Penny Thomas, ‘Duplication of Transaction Records Contained in ARQ
Returns’, dated 22 June 2010.
2 FUJ00097038, Email chain dated 23-24 June 2010, ‘PC0200468— Duplication of Transaction Records’.
ms FUJ00097058, Report by Ms Penny Thomas, ‘Duplication of Transaction Records Contained in ARQ
Returns’, dated 22 June 2010.
FUJ00097039, Email chain dated 24 June 2010, ‘Duplication of Transaction Records on ARQ Returns’.
FUJ00097071, Email chain dated 25 June 2010, ‘ARQs’, p.1.
FUJ00121097, Email chain dated 30 June-2 July 2010, ‘Duplicatation [sic] of Transaction Records
Contained in ARQ Returns’, pp.2-3 (email dated 30 June 2010 at 13:33).
232 See, for example: FUJ00121097, Email chain dated 30 June-2 July 2010, ‘Duplicatation [sic] of
Transaction Records Contained in ARQ Returns’, pp.2-3 (email dated 30 June 2010 at 13:33).
FUJ00176311, Email chain dated 24 June 2010, ‘Duplicate Messages in ARQ (updated)’; FUJO0122907,
Email chain dated 8 July 2010, ‘Duplicate Records — Witness Statement’.
34
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Jenkins himself (and has not yet disclosed to Core Participants Mr Jenkins’ witness statement
concerning Phase 4 issues). Therefore, the submissions which follow are necessarily preliminary
in nature.
45. Mr Duncan Atkinson KC gave evidence as to a number of important duties owed by a prosecutor,
who was seeking to rely upon expert evidence. Those duties included:
45.1. A duty for the prosecutor to satisfy themselves of the expert’s relevant qualifications and
expertise;?3
45.2. A duty for the prosecutor to satisfy themselves that the expert has been appropriately
instructed, including by the provision of a relevant and detailed letter of instruction;?™*
45.3. A duty for the prosecutor to inform the expert as to their relevant duties to the court; and
to satisfy themselves that the expert has understood and complied with those duties?*>
45.4. A duty for the prosecutor to satisfy themselves that any literature or material, of which the
expert is aware, which undermines the expert’s conclusions have been: (i) reviewed by the
prosecution; and (where appropriate) (ii) disclosed to the defence;?*° and
45.5. A duty for the prosecutor to bring to the attention of the defence and the Court any material
of which the prosecutor is aware which is reasonably capable of undermining the expert’s
opinion, including matters relevant to: (i) the expert’s relevant qualifications and expertise;
(ii) the factual basis of the expert’s opinions; and (iii) the expert’s credibility (whether or
not a specific request for disclosure is made?*’).”*
46. The evidence received by the Inquiry in Phase 4 clearly supports the conclusion that there was a
repeated, and serious, failure to discharge those important duties:
47. First, it is clear that Post Office consistently failed properly to instruct ‘expert’ witnesses. That
included a failure to: (i) set out the expert’s instructions in a proper letter of instruction; (ii)
provide to the expert all information relevant to their instructions; and (iii) inform the expert of
233 Transcript, 6 October 2023, p.45, In.20-p.46, In.1 (Mr Duncan Atkinson KC).
24 Transcript, 6 October 2023, p.45, In, 1-p.46, In.22 (Mr Duncan Atkinson KC).
235 Transcript, 6 October 2023, p.46, In.23-p.47, In.9 (Mr Duncan Atkinson KC).
236 Transcript, 6 October 2023, p.47, In.22-p.48, In.4 (Mr Duncan Atkinson KC).
237 Ry Ward [1993] 1 WLR 619.
28 Transcript, 6 October 2023, p.48, In.5-In.23 (Mr Duncan Atkinson KC).
35
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the scope and nature of their relevant duties to the Court. As Mr Atkinson summarises the position
in relation to Mr Jenkins: “Communication with him in writing appears to have been informal
and brief, and at no point made any reference to the duties of either Mr Jenkins as expert or the
Post Office as prosecutor in relation to material underlying or undermining his opinions”? As
to that:
47.1. A number of Post Office witnesses gave evidence to the effect that they were wholly
ignorant of the important duties which applied in relation to the instruction of an expert
witness on behalf of the prosecution.”
47.2. Ms Deborah Stapel gave candid evidence in accepting that she had failed to comply with
the duties of a prosecutor in instructing an expert witness because she “relied on the
Investigator to satisfy themselves that the expert was appropriately informed and
appropriately instructed”.**' Further, Ms Stapel’s evidence was that, in particular, she had
“assumed” that Mr Jenkins was aware of the relevant duties, rather than satisfying herself
242
of that matter.’ To similar effect, Mr Jarnail Singh accepted that he failed to discharge
the duties of a prosecutor in connection with the instruction of Mr Jenkins — indeed, Mr
Singh accepted that his conduct in relation to Mr Jenkins was “a serious dereliction of
[his] duties as a prosecutor” 2
47.3. Another contributing factor appears to have been genuine confusion, within Post Office,
over the status of witnesses like Mr Jenkins — and whether he was, in fact, to be treated as
an expert witness.” It is unclear that such confusion ever truly resolved itself.
47.4. Indeed, the Inquiry may well take the view that a number of witnesses who gave evidence
in Phase 4, and who were involved in the investigations into, and prosecutions of, SPMs
even now demonstrated doubtful understanding as to the distinction between witnesses of
fact, and expert witnesses.”
239 EXPG0000004, Expert Report of Duncan Atkinson KC, Volume 2, $674.
240 ‘Transcript, 24 November 2023, p.43, In.25-p.44, In.17 (Ms Diane Matthews).
mi Transcript, 14 November 2023, p.28, In.9-p.29, In.20; p.29, In.21-p.30, In.
Deborah Stapel).
242 ‘Transcript, 14 November 2023, p.32, In.23-p.33, In.13 (Ms Deborah Stapel).
24 Transcript, 1 December 2023, p.124, In.22-p.129, In.8 (Mr Jarnail Singh) (Q. “Do you agree that that’s
a serious dereliction of your duties as a prosecutor?” A. “Yes, yes it is”).
244 Transcript, 24 November 2023, p.108, In.25-p.109, In.12 (Ms Diane Matthews).
245 Transcript, 5 December 2023, p. 108, In.5-p.109, In.7 (Mr David Posnett); Transcript, 22 November 2023,
p.3l, In.1-In.15 (Mr Gerald Harbinson); Transcript, 28 November 2023, p.195, In.14-p.196, In.5 (Mr
Graham Brander); Transcript, I December 2023, p.58, In. 10-p.61, In.18 (Mr Jarnail Singh).
32, In.23-p.33, In.13 (Ms
36
48.
247
248
249
250
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47.5. Post Office’s failure properly to instruct Fujitsu employees as expert witnesses had
important practical consequences. By way of illustration, Mrs Anne Chambers’ evidence
in relation to the Castleton case was that, because she was not aware that she was initially
being instructed as a witness in court proceedings at all (much less as an expert witness)
she did not keep an ongoing record of the work that she had initially undertaken in relation
to the case.
Secondly, in addition to the repeated and serious failures of omission in relation to the instruction
of expert witnesses; it is also clear that, on a number of occasions, Post Office investigators and
lawyers sought to influence or amend the content of expert witness statements, in a manner which
was seriously inappropriate, and wholly inconsistent with their duties. By way of example:
48.1. In March 2006, the interactions between various Post Office staff and Mr Jenkins in
relation to the case of Mr Hughie Thomas are particularly instructive. The relevant
i) On 22 March 2006, Mr Graham Ward expressed
concern about a draft report which had been prepared by Fujitsu (“/’m concerned at the
sequence of events is as follows:
words ‘system failure’ which is also in an earlier line ... What does this mean exactly and
is there any indication of a system failure at this office during the period in question?”);?"
(ii) On 23 March 2006, a further draft statement was provided by Mr Jenkins, which
described, inter alia, “System Failure” as being “normal occurrences”, and which
requested the deletion of a paragraph which certified that “There is no reason to believe
that the information in this statement is inaccurate because of the improper use of the
computer. To the best of my knowledge and belief at all material times the computer was
operating properly, or if not, any respect in which it was not operating properly, or was
out of operation was not such as to effect the information held on it”;** (iii) On 24 March
2006, Mr Ward expressed concern that the draft statement “needs more work”, and
specifically identified the references to “system failure” as being “potentially very
damaging”;°* (iv) Also on 24 March 2006, Mr Ward prepared a further draft of the witness
statement for Mr Jenkins, which deleted references to “system failure”;?*° (v) On 28 March
2006, Mr Jenkins provided a further draft statement, including responses to Mr Ward’s
various queries, including an invitation to Mr Ward to “suggest something better”, in
Transcript, 26 September 2023, p.121, In.5-p.122, In.7 (Mrs Anne Chambers).
FUJ00152587, Email chain, ‘RE: Gaerwen’, p.4 (email dated 22 March 2006 at 14:11).
FUJ00122204, Draft witness statement of Mr Gareth Jenkins, dated 23 March 2006, pp.1, 3.
FUJ00122210, Email chain, ‘FW: Gaerwen’, p.1 (email dated 24 March 2006 at 11.37).
POL00047895, draft witness statement of Gareth Jenkins dated 24 March 2006, p.2.
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relation to “system failure”, providing an explanation as to the nature of relevant failures;?*!
(vi) Also on 28 March 2006, Mr Ward sent a further email, noting that Mr Jenkins’
“annotations do not take us forward at all”, and suggesting that the statement “needs to
include a paragraph which states that there is no evidence of a system error at Gaerwen
(assuming this is the case) in relation to the ‘Nil’ transactions at the office. We do not need
to mention “system failures being normal occurrences” if there is no evidence of such a
problem at this office. As I've already indicated on an earlier e mail, it may now be bestif
the Investigator dealing with this case arranges to meet with Gareth to take the statement
in person... but can you confirm that you fully understand our requirements to ensure
Gareth... is in a position to ‘tie up’ all these requirements in one statement”;?” and (vii)
Subsequently, Mr Brian Pinder arranged for Ms Diane Matthews to meet with Mr Jenkins
to finalise the statement. Although Ms Matthews could not recall meeting with Mr
Jenkins,”* the contemporaneous documentation leads inevitably to the conclusion that she
did do so.?** The statement was eventually finalised without the caveats that Mr Jenkins
had sought to introduce into earlier drafts. Ms Matthews accepted that the
contemporaneous documents show Post Office staff going into “self-preservation
mode”.®*> Mr Atkinson’s evidence was that the approach taken by Post Office in relation
to this statement was inappropriate. The Inquiry is respectfully invited to accept that
evidence.
48.2. In August 2006, in connection with the civil claim against Mr Lee Castleton, Mr Jenkins
raised a number of significant queries with Post Office, which suggested that further
analysis of underlying records was required, in order to confirm the accuracy of Post
287
Office’s case against Mr Castleton.**’ It would appear that, in the event, Fujitsu were never
requested to carry out those analyses suggested by Mr Jenkins, and Mr Jenkins’ draft
statement was never finalised.
48.3. In January 2009, Mr David Posnett of Post Office (following a discussion with Mr Robert
Wilson, the Head of Criminal Law) required amendments to a template witness statement
FUJ00122217, Email chain, ‘RE Gaerwen’, p.1 (email dated 28 March 2006), attaching FUJ00122218,
Draft Witness Statement of Gareth Jenkins dated 24 March 2006, nb. p.2.
FUJ00152587, Email chain, ‘Gaerwen Statement’, 28 March 2006, p.1.
Transcript, 24 November 2023, p.95, In.20-p.96, In.15 (Ms Diane Matthews).
FUJ00155721, Email chain dated 29 March 2006-1 April 2006, ‘Investigations’, p.1 (“/ have arranged
for Diane to meet with Gareth at 1100 hrs on Thursday ... to record the statement”).
Transcript, 24 November 2023, p.98, In.4-p.99, In.12 (Ms Diane Matthews).
Transcript, 19 December 2023, p.69, In.20-p.70, In.8 (Mr Duncan Atkinson KC).
FUJO0122284, Draft witness statement of Gareth Jenkins, dated 2 August 2006.
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prepared by Ms Penny Thomas of Fujitsu.?** The effect of those amendments was to
remove from the witness statement several paragraphs addressing potential audit issues
(“POL clearly do not want the specific details of this incident included in the witness
statement’).
48.4. In October 2010, counsel instructed by Post Office in the prosecution of Ms Seema Misra,
Mr Warwick Tatford, made a number of substantive amendments to a further witness
statement of Mr Jenkins.” Most significantly, in a draft witness statement Mr Jenkins had
stated “While I can't 100% rule out such issues as causing some issues. However I cant
see how this could account for anything like the full extent of the losses”. However, Mr
Tatford requested that statement be rephrased: “Please rephrase. This will be taken as a
damaging concession”.
48.5. In March 2012 an email between Post Office solicitors in relation to a prosecution recorded
that “Counsel would, bluntly, like Fujitsu to pour as much cold water as possible on the
defence report’. This request was passed by Mr Andrew Bole and Mr Graham Brander to
Fujitsu. 7°
48.6. In December 2012, Mr Andrew Bole instructed Mr Jenkins to “discount” or “discredit”
specific claims made by SPMs in relation to the Horizon system.”°! In his evidence, Mr
Bole (rightly) conceded that these were inappropriate terms in which to instruct an expert
witness.?
49. Thirdly, Fujitsu accepts its own share of responsibility for the failure properly to oversee and
manage the instruction of Fujitsu staff as both witnesses of fact and ‘expert’ witnesses in Post
Office civil and criminal proceedings. Fujitsu accepts that the Fujitsu legal team failed to provide
the appropriate oversight of, and support to, its employees who gave evidence in proceedings on
behalf of Post Office. In particular, given that the Fujitsu staff who appeared as ‘expert’ witnesses
were generally technical staff with little (or no) familiarity with the procedures for, and duties
associated with, the provision of witness evidence in court proceedings, Fujitsu recognises that
288 FUJ00155400, Email chain dated 7-8 January 2009, ‘Fw: Security Incident’, pp.1-2.
259 FUJ00123006, Draft witness statement of Mr Gareth Jenkins, dated 6 October 2010. See, for example,
p.8 “This is rubbish. ”, “Isnt theft rather more likely?”.
260 FUJO0156530, Email chain dated 13-14 March 2012, ‘RM v Bramwell’, pp.2-4.
261 POL00089394, Email chain dated 30 NovemberS December 2012, ‘RE: Sefton & Nield and Grant
Allen’, p.1; FUJ00153881,Email chain dated 4-5 December 2012, ‘Post Office Limited v Grant Allen’,
p.3.
262 Transcript, 15 December 2023, p.97, In. 17-p.98 In. 7; p. 115, In, 24-p. 116, In. 20 (Mr Andrew Bolc).
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there was a missed opportunity for Fujitsu to intervene to ensure that witnesses were properly
prepared, and conducted themselves in accordance with their duties.
50. On 29 January 2007, following the trial in the Castleton case, Mrs Anne Chambers prepared an
‘Afterthoughts’ memo, which identified a number of shortcomings in respect of her instruction
as a witness in that case.”° Those shortcomings included: (i) Mrs Chambers was asked to liaise
directly with solicitors to the Post Office, rather than such conduct being ‘mediated’ by Fujitsu’s
own legal team; (ii) Mrs Chambers was repeatedly assured that a court attendance would not be
necessary, which assurances “proved to be unfounded”; (iii) the initial analysis which Mrs
Chambers performed involved no “technical review of the Horizon evidence”; (iv) Mrs Chambers
was surprised that she “found [herself] being treated as an expert witness and answering a wide
variety of questions about the system, although nominally I was a witness of fact”; (v) not all of
the relevant evidence (e.g. Tivoli event logs) was disclosed, and Mrs Chambers found herself
“not sure whether they had been disclosed or not”*. Fujitsu accepts that Mrs Chambers”
identification of the shortcomings in her instruction in the Castleton case involve properly
justified criticisms of the conduct of the case by Fujitsu. Fujitsu also accepts that following Mrs
Chambers’ identification of those shortcomings, Fujitsu failed to implement sufficiently robust
mechanisms to monitor and support its employees in the provision of (expert or non-expert)
witness evidence in Post Office cases.”® Fujitsu deeply regrets that missed opportunity.
Conclusion
51. Fujitsureiterates its gratitude to the Inquiry for the opportunity to make these closing submissions
on Phase 4 and confirms its commitment to render every assistance to the Inquiry.
RICHARD WHITTAM KC
SAMANTHA KNIGHTS KC
TIM JAMES-MATTHEWS
ROSALIND COMYN
Matrix Chambers
16 February 2024
263 FUJ00152299, ‘A fterthoughts on the Castleton case’, dated 29 January 2007
264 Ibid., p.1.
265 ‘Transcript, 27 September 2023, p.90, In.8-In. 16 (Mrs Anne Chambers).
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